Opinion
Case No. 01-3236-DES
July 31, 2001
Petitioner, a prisoner confined at the El Dorado Correctional Facility, proceeds pro se.
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
PROCEDURAL HISTORY
The instant petition for relief identifies four claims: (1) prosecutorial misconduct based upon the District Attorney's references to lying in closing arguments; (2) ineffective assistance of counsel for counsel's failure to object to the prosecutorial misconduct; (3) improper admission of hearsay evidence; and (4) improper admission of perjured testimony. Each of these claims for relief was raised in petitioner's application for post-conviction relief. The motion was denied by the district court on November 3, 1999, which decision was affirmed by the Kansas Court of Appeals on May 11, 2001. No petition for review was filed with the Kansas Supreme Court.
Petitioner has another action pending — Taylor v. Attorney General of Kansas, Case No. 99-3338-DES. The three claims raised in that petition for writ of habeas corpus involve claims raised in petitioner's direct appeal. Both the claims raised in this petition and those in Case No. 99-3338 challenge the validity of petitioner's 1997 conviction for aggravated robbery.
Because the claims in Case No. 99-3338 have not yet been reviewed on the merits and because petitioner could have filed a motion to amend to include these claims in Case No. 99-3338, the court concludes they may be consolidated pursuant to Rule 42(a) of the Federal Rules of Civil Procedure.
Notwithstanding the recommended consolidation, it would appear that petitioner has procedurally defaulted the claims raised in this case based upon his failure to seek review of those claims by the Kansas Supreme Court.
PROCEDURAL DEFAULT ANALYSIS
A petitioner's failure to timely seek review by the state's highest appellate court results in a procedural default of any claims not presented to such court. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). Because petitioner failed to seek review of his underlying claims by the Kansas Supreme Court, he has procedurally defaulted those claims. The procedural default doctrine precludes federal habeas review of a federal claim that a state court has not considered due to the petitioner's noncompliance with state procedural rules unless petitioner can show (1) both cause and prejudice or (2) manifest injustice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Cause and Prejudice: As indicated above, petitioner claims his attorney caused the procedural default by advising him not to file a petition for review. Because there is no constitutional right to counsel in post-conviction proceedings, attorney error resulting in a procedural default of a petitioner's appeal in a state habeas proceeding "cannot constitute cause to excuse the default in federal habeas." Coleman, 501 U.S. at 756-757; Golston v. Att'y Gen. State of Ala., 947 F.2d 908, 909 (11th Cir. 1991). The Coleman opinion reasoned that a court does not focus on the gravity of the attorney's error in determining if it satisfies the "cause" prong of the cause and prejudice exception, but whether the error violates the petitioner's constitutional right to counsel so as to render the error an external factor to be imputed to the state. Coleman, 501 U.S. at 754.
Counsel's misguided advice did not violate petitioner's constitutional right to counsel and, therefore, is not "cause" to excuse the procedural default.
Miscarriage of Justice: The miscarriage of justice exception applies only if petitioner makes a threshold showing of actual innocence, that is, by showing that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). Petitioner's simple statement that he was convicted of a crime he didn't commit (see p. 6 of handwritten memorandum, attached to Doc. 1) fails to satisfy the "miscarriage of justice" exception.
Finding no support for either the "cause and prejudice" or "miscarriage of justice" exceptions to the state procedural bar, petitioner's claims are not subject to review by this court.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that (1) this action be consolidated with Case No. 99-3338 and (2) the claims raised in the petition filed in Case No. 01-3236 be dismissed due to petitioner's procedural default of those claims.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk. Should petitioner have any other evidence of cause and prejudice or of manifest injustice, the same must be presented to the District Court by objections to this Report and Recommendation.
Copies of this Report and Recommendation shall be mailed to petitioner. A copy of both this Report and Recommendation and the Petition shall also be mailed to the office of the Attorney General for the State of Kansas.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.