Opinion
CIV-22-693-G
11-02-2022
HILARIO GONZALEZ, Petitioner, v. JIM FARRIS, Warden, Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
Gary M. Purcell, United States Magistrate Judge
Plaintiff, a state prisoner appearing pro se, brings this action seeking habeas relief pursuant to 28 U.S.C. § 2254. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Complaint pursuant to 28 U.S.C. § 1915A, the undersigned recommends the Petition be dismissed without prejudice.
I. Background Information
On June 8, 2021, Petitioner was convicted, following guilty pleas, of Conspiracy to Commit Trafficking in Illegal Drugs, Possession of a Controlled Dangerous Substance, and Unlawful Possession of Drug Paraphernalia. Doc. No. 1 at 1; see also Oklahoma State Court Network, State v. Gonzalez, Case No. CF-2018-562, District Court of Comanche County. The state trial court sentenced Petitioner to twenty years imprisonment with twelve years suspended. Id. Petitioner did not move to withdraw his guilty plea or file a direct appeal.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=comanche&number=CF-2018-562
On March 29, 2022, Petitioner filed an application for post-conviction relief with the state trial court. Doc. No. 1 at 3; Oklahoma State Court Network, State v. Gonzalez, Case No. CF-2018-562, District Court of Comanche County, supra. In his application, Petitioner requested to file an appeal out of time. Doc. No. 1 at 3. The state trial court denied Petitioner's application on May 2, 2022. Id. at 3-4.
Petitioner filed an appeal with the Oklahoma Court of Criminal Appeals (“OCCA”) on May 27, 2022. Oklahoma State Court Network, Gonzalez v. State, Case No. PC-2022-497, Oklahoma Court of Criminal Appeals. Therein, Petitioner raised ineffective assistance of counsel and argued the trial court erred by unlawfully enhancing his sentence. Petition in Error, Gonzalez v. State, Case No. PC-2022-497 (Okla. Crim. App. May 27, 2022). On July 11, 2022, the OCCA affirmed the state trial court's decision, explaining:
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC 2022-497&cmid=133032.
Petitioner must prove he was denied an appeal through no fault of
his own in order to be granted an appeal out of time. Dixon v. State, [] 228 P.3d 531, 532 [(Okla. Crim. App. 2010) (relying on Rule 2.1(E) of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. requiring a petitioner to establish he was denied a timely appeal through no fault of his own)]. Petitioner's petition to this Court and the record fail to establish he was denied an appeal through no fault of his own. Therefore, Petitioner's petition seeking a certiorari appeal out of time is DENIED.Order, Gonzalez v. State, Case No. PC-2022-497 (Okla. Crim. App. July 11, 2022).
II. Screening Requirement
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief ....” Rule 4, Rules Governing § 2254 Cases. “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). Petitioner has such notice by this Supplemental Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Supplemental Report and Recommendation. Further, when raising a dispositive issue sua sponte, the district court must “assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits ....” Id. (quotations omitted); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 932229, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation).
III. Procedural Bar
In his Petition, Petitioner contends his sentence was unconstitutional because the state trial court relied upon “expired” previous convictions to enhance the same. He also asserts ineffective assistance of counsel based on counsel's failure to raise this issue during his criminal proceedings. Petitioner indicates he raised each of these claims in his application for post-conviction relief seeking to file an appeal out of time, as well as his subsequent appeal of the trial court's denial of post-conviction relief. Doc. No. 1 at 6-8. As established, the state trial court and the OCCA found these grounds for relief were procedurally barred based on Petitioner's failure to show that he was denied a timely appeal through no fault of his own.
Only under rare circumstances may a federal court provide habeas review on an issue the petitioner has procedurally defaulted in state court. See Smith v. Allbaugh, 921 F.3d 1261, 1267 (10th Cir. 2019) (“The procedural-default rule generally prevents a federal court from reviewing a habeas claim when the state court declined to consider the merits of that claim based ‘on independent and adequate state procedural grounds.'” (quoting Maples v. Thomas, 565 U.S. 266, 280 (2012)). As the Tenth Circuit has explained,
“[W]e may not consider claims that have been ‘defaulted in state court on adequate and independent state procedural grounds'” absent the petitioner's demonstration of “‘cause for the default and actual prejudice as a result of the alleged violation of federal law, or [that] failure to consider the claims will result in a fundamental miscarriage of justice.'” Byrd, 645 F.3d at 1167 (quoting Matthews v. Workman, 577 F.3d 1175, 1195 (10th Cir. 2009))[.]Grant v. Royal, 886 F.3d 874, 889-90 (10th Cir. 2018). “‘A state procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision.' And the ground is adequate if it has been ‘applied evenhandedly in the vast majority of cases.'” Quintana v. Hansen, 733 Fed.Appx. 439, 443 (10th Cir. 2018) (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998)).
As stated above, the state trial court and the OCCA applied Rule 2.1(E)(1) to determine Petitioner's grounds were procedurally barred based on his failure “to establish he was denied an appeal through no fault of his own.” Order, Gonzalez v. State, Case No. PC-2022-497 (Okla. Crim. App. July 11, 2022). Rule 2.1(E) is an “independent” state ground because state law provided “the exclusive basis for the state court's holding.” Maes v. Thomas, 46 F.3d 979, 985 (10th Cir. 1995). In addition, Rule 2.1(E) is “adequate” to bar the claim on federal habeas corpus review. Cf., Elias v. O'Connor, No. 20-CV-049-RAW-KEW, 2021 WL 4895206, at *11 (E.D. Okla. Oct. 20, 2021) (citing Windsor v. Patton, 623 Fed.Appx. 943, 945 n.1 (10th Cir. 2015) (declining to consider the forfeited argument that Rule 2.1(E) was inadequate but noting that the petitioner's “bare assertions of inconsistent application by the OCCA [would not] be a sufficient basis for us to conclude that Oklahoma courts do not apply Rule 2.1 consistently and evenhandedly”); Dixon, 228 P.3d at 532-33 n.2 (denying request for out-of-time appeal based on failure to follow OCCA Rule 2.1(E)); Blades v. State, 107 P.3d 607, 608 (Okla. Crim. App. 2005) (dismissing appeal based on non-compliance with OCCA Rule 2.1(E)); Banks v. State, 953 P.2d 344, 347 (Okla. Crim. App. 1998) (refusing to grant an out-of-time appeal to a defendant who failed to follow the provisions of OCCA Rule 2.1 and stating, “We must insist that our rules are followed consistently”)). Thus, the Court concludes Petitioner's claims are procedurally barred.
Because of his procedural default, this Court may not consider Petitioner's claims unless he is able to show cause and prejudice for the default, or demonstrate that a fundamental miscarriage of justice would result if his claims are not considered. Coleman v. Thompson, 501 U.S. 722, 750 (1991). The cause standard requires a petitioner to “show 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). Examples of such external factors include the discovery of new evidence, a change in the law, and interference by state officials. Id. As for prejudice, a petitioner must show “actual prejudice resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168 (1982) (quotations omitted). Alternatively, a “fundamental miscarriage of justice” requires a petitioner to demonstrate that he is actually innocent of the crime of which he was convicted. Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014).
Petitioner has not attempted, in either the state court or in his current Petition, to establish cause for his failure to file a timely direct appeal. See generally Doc. No. 1; Petition in Error, Gonzalez v. State, Case No. PC-2022-497 (Okla. Crim. App. May 27, 2022). Thus, the Court finds Petitioner has failed to demonstrate cause for his procedural default. As a result, the Court need not assess the prejudice component of the inquiry.
If Petitioner has a basis to find cause and prejudice, he may present it in an objection to this Supplemental Report and Recommendation.
Petitioner's only other means of gaining federal habeas review of his defaulted claims is a claim of actual innocence under the fundamental miscarriage of justice exception. Herrera v. Collins, 506 U.S. 390, 403-04 (1993); Sawyer v. Whitley, 505 U.S. 333, 339-41 (1992); see also Schlup v. Delo, 513 U.S. 298, 316 (1995). To meet this test, a criminal defendant must make a colorable showing of factual innocence. Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000) (citing Herrera, 506 U.S. at 404). Under Schlup, a showing of innocence sufficient to allow consideration of procedurally barred claims must be “so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error ....” Schlup, 513 U.S. at 316. A petitioner has the burden of persuading this Court “that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. at 329. In the instant case, Petitioner has not claimed to be innocent of the crimes to which he pled guilty. Therefore, the Court finds Petitioner may not utilize the fundamental miscarriage of justice exception to overcome the procedural bar applicable to his claims.
Petitioner does not present a basis in his Petition to overcome the procedural default regarding his claims for relief because he does not present grounds to support cause and prejudice or a miscarriage of justice. Accordingly, the undersigned finds the Petition should be dismissed without prejudice as procedurally barred.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's action be dismissed without prejudice as procedurally barred from federal habeas review. Plaintiff is advised of the right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by November 22nd, 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is deemed denied.