Opinion
Case No. 01-3247-DES.
September 10, 2001
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation. The underlying petition for writ of habeas corpus seeks relief pursuant to 28 U.S.C. § 2254. The petition was initially filed in the United States District Court for the District of Arizona on May 21, 2001 and subsequently transferred to the District of Kansas.
Petitioner raises the following claims within his petition for writ of habeas corpus: (1) Fourth Amendment violation based upon unreasonable search and seizure; (2) a Fifth Amendment due process Brady violation; (3) Eighth Amendment cruel and unusual punishment violations; and (4) Fourteenth Amendment equal protection violations.
Based upon a complete review of the record, the court issues this report and recommendation:
Procedural History
Petitioner was convicted November 2, 1997, of aggravated indecent liberties with a child, two counts of sexual exploitation of a child, and two counts of aggravated criminal sodomy. Petitioner appealed the conviction to the Kansas Court of Appeals ("KCOA") and his conviction was affirmed on November 12, 1999. Petitioner did not file a petition for review with the Kansas Supreme Court until December 21, 2000, over a year after the time to file had expired. Petitioner claims his attorney advised him of the adverse KCOA decision in September of 1999, and that a petition for review would be filed. The attorney, however, failed to file a petition for review. The Kansas Supreme Court denied petitioner's belated petition for review as untimely. Petitioner has filed no state motions for collateral review. Procedural Default Analysis
All claims raised by petitioner herein were raised in his direct appeal. However, the Kansas Supreme Court denied the petition for review because it was not timely filed. Therefore, petitioner has procedurally defaulted in the presentation of his claims to the state court. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (failure to present federal habeas claims to the state supreme court "in a timely fashion [results] in a procedural default of those claims").
The procedural default doctrine precludes federal habeas review of a federal claim that a state court has declined to consider due to the petitioner's noncompliance with state procedural rules unless petitioner can show (1) both cause and prejudice or (2) manifest injustice. See Coleman v. Thompson, 501 U.S. 722, 749-750 (1991).
Cause and Prejudice Analysis: Cause may be established by showing "that some objective factor external to the defense impeded . . . efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Counsel's ineffectiveness may constitute cause if such ineffectiveness establishes an independent constitutional violation. Coleman, 501 U.S. at 754.
Here, petitioner claims his attorney caused the procedural default by failing to timely file the petition for review. Before "ineffective assistance of counsel" may be advanced as cause for the procedural default of another claim, however, counsel's ineffectiveness must have been presented to the state courts in accordance with state law. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Petitioner did not present an ineffective assistance of counsel claim in his direct appeal and has not filed any collateral attacks under K.S.A. 60-1507. This court finds no "cause" to excuse presentation of the ineffective assistance of counsel claim to the state court and, as such, counsel's ineffectiveness cannot constitute "cause" for any other procedural default.
Miscarriage of Justice Analysis: 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)). While petitioner challenges various aspects of his trial and proceedings leading thereto, there is no claim of actual innocence.
In affirming petitioner's conviction, the KCOA noted that petitioner "did not dispute the truthfulness of material factual allegations in the affidavit and application for search warrant, but merely disputed the sufficiency of those facts to support a finding of probable cause." State v. Brinkman, No. 81,825 (Kan.App. Nov. 12, 1999) at 5.
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 the petition for a writ of habeas corpus be dismissed and all relief denied.
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 timely file objections may constitute a waiver of a party's right to appeal. Thomas v. Arn, 474 U.S. 140 (1985) and 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 information supporting "cause and prejudice", 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 and counsel of record.
Dated this ___ day of September, 2001, at Topeka, Kansas.
______________________________ CATHERINE A. WALTER United States Magistrate Judge