Summary
finding that appellate counsel's error did not constitute good cause for petitioner's failure to exhaust claims
Summary of this case from Gaouette v. O'BrienOpinion
CIVIL ACTION NO. 07-11842-GAO.
July 31, 2008
OPINION AND ORDER
The petitioner brought a petition for a writ of habeas corpus on the sole ground that the state court's failure to apply retroactively a new rule of criminal procedure violated his federal due process rights. The respondent moved to dismiss the petition for the petitioner's failure to have exhausted his claim, contending that the petitioner only raised it for the first time in a Petition for Rehearing before the State's highest court, and insufficient effort at exhaustion. In a previous Opinion and Order, I found that the petitioner's claim could be deemed exhausted because it would be considered procedurally barred under Massachusetts state law. While such an approach resolves the issue of exhaustion, it raises the separate issue of procedural default. Typically, where a claim is considered procedurally defaulted, it can only be heard if the petitioner shows "cause for the default and actual prejudice." See Coleman v. Thompson, 501 U.S. 722, 750 (1991). Because the issue of procedural default had not been addressed by the parties, I invited supplemental briefing on that issue. In response, the petitioner has filed two separate motions — the first, a motion to stay this habeas proceeding to allow the petitioner to exhaust his claims in the state courts and, the second, a motion to amend his petition for a writ of habeas corpus to include a claim of ineffective assistance of appellate counsel.
Ineffective assistance of counsel can amount to a sufficient "cause" for excusing procedural default. However, such a claim itself must comport with the exhaustion requirements before it can be used to establish cause for a procedural default. See Murray v. Carrier, 477 U.S. 478, 488-89 (1986); see also Gunter v. Maloney, 291 F.3d 74, 81 (1st Cir. 2002). ("[w]here petitioner has failed to exhaust the ineffective assistance claim, petitioner must show cause for and prejudice from his failure to do so.") Here, the petitioner has admittedly not exhausted his claim of ineffective assistance of appellate counsel. Rather, he asks this court to stay the petition so that he can present his claims of ineffective assistance of appellate counsel and due process violation to the state courts in the first instance.
A stay is appropriate where "the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that he engaged in intentionally dilatory litigation tactics." Rhines v. Weber, 544 U.S. 269, 278 (2005). Here, the stay analysis must be applied to both the due process claim and the ineffective assistance of appellate counsel claim.
With respect to the due process claim, the petitioner's attorney has submitted an affidavit stating that he "did not address the federal Constitutional issues due to inadvertence and error. I had overlooked the federal basis of the claim at the time I filed the brief on appeal." (Malkovich Aff. ¶ 4, June 27, 2008 (dkt. no. 14).) The First Circuit has found that an attorney's "[i]gnorance of the law does not constitute good cause." See Josselyn v. Dennehy, 475 F.3d 1, 5 (1st Cir. 2007). There is no substantive difference between error due to ignorance and error due to inadvertence. Accordingly, the petitioner has not shown good cause warranting a stay to exhaust his due process claim.
The petitioner has offered no explanation, let alone good cause, as to why he failed to exhaust the claim of ineffective assistance of appellate counsel. The petitioner filed a pro se motion for reconsideration based on the exact same federal ground as he seeks to raise through this habeas petition, but which counsel failed to raise in the direct appeal. At that time, both petitioner and petitioner's counsel were aware of any potential ineffective assistance of counsel claim and could and should have raised it in the state court prior to filing the habeas petition. For this reason, the petitioner has not shown adequate "cause" for his failure to exhaust the ineffective assistance claim. See Gunter, 291 F.3d at 81.
Having failed to proffer a plausible showing of good cause for his failure to exhaust either his federal due process claim or his ineffective assistance of appellate counsel claim, the motion to stay is DENIED (dkt. no. 12). Additionally, any attempt to amend the petition to include a separate ground of ineffective assistance of appellate counsel would be futile as that claim is also unexhausted and no stay has been granted. Therefore, the motion to amend is also DENIED (dkt. no. 14).
Having found the ineffective assistance of appellate counsel claim to be unexhausted (and no stay to exhaust has been granted), that claim cannot serve as the basis for a showing of sufficient cause to excuse the due process claim from the procedural default bar. Moreover, "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." See Carrier, 477 U.S. at 486. Because the petitioner has not shown cause, I do not reach whether the petitioner suffered actual prejudice from the procedural default.
In conclusion, the sole basis of the petition, an alleged violation of the petitioner's federal due process rights, is procedurally defaulted and the petitioner has not shown adequate cause and prejudice. Therefore, the respondent's motion to dismiss (dkt. no. 5) is GRANTED. The petition for a writ of habeas corpus is DISMISSED.
It is SO ORDERED.