Opinion
Civil No. 99-1519 (PG)
July 12, 2000.
Harry R. Segarra, Esg., Keith E. Golden, Esg., for Appellant Counselors.
Gloria Robison Guarch, Esg., for Appellee Counselors.
REPORT AND RECOMMENDATION
Petitioner filed this post-conviction motion through counsel pursuant to 28 U.S.C. § 2254, after having been convicted and sentenced for the shooting death of the victim back in 1975 after stealing his car, together with other codefendants. He claims ineffective assistance of his counsel, who was retained and paid by another codefendant named Morales, upon his failure to pursue a plea agreement that could negatively impact the codefendant's defense. Another participating codefendant Soto-Monje testified at the trial held implicating both, petitioner and the codefendant. They were convicted. Counsel did not file an appeal for the petitioner.
Petitioner states he filed for post-conviction relief before the Puerto Rico trial court on September 8, 1997. The motion was denied on December 3, 1997, and the petition for rehearing was also denied on February 18, 1998. Petitioner then filed a writ for certiorari before the Puerto Rico Supreme Court that was denied on May 15, 1998. The petitioner's motion before this court was timely filed on May 17, 1999, within the one-year limitation period of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244 (d).
Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996).
Prisoners whose conviction became final prior to AEDPA's effective date may file motions under § 2254 within one year of said date. Rogers v. United States, 180 F.3d 349 (1st Cir. 1999).
The respondent filed its answer and raised petitioner had failed to pursue all available state court remedies and as such has not exhausted state relief, in addition to having defaulted his claim. Over twenty (20) years after his state conviction, petitioner raised before state court a claim of ineffective assistance of counsel for failure to file a direct appeal to the conviction. The motion was denied, as was the rehearing and the certiorari filed before the Supreme Court. No reasons for the dismissal of these petitioners were provided, either because these were considered untimely or petitioner had defaulted by failing to file before the Circuit Court of Appeals and thus had not avail himself of the state procedural gateposts. Furthermore, the respondent's answer also prompts that petitioner has not shown cause or prejudice under Wainwright v. Sykes, 433 U.S. 478, 488-89 (1991).
Petitioner filed a reply to above answer on February 14, 2000. Insofar as the allegations that he had not exhausted his state remedies, petitioner submits that his Rule 192.1 was filed before the sentencing court, Humacao Superior Court, and once denied, certiorari before the Supreme Court followed. No intermediate level of appeal to a Circuit Court of Appeals is contemplated by the Puerto Rico Rules of Criminal Procedure, Rule 192.1.
This magistrate considers that petitioner has exhausted available relief and should not be dismissed on such grounds.
Notwithstanding, petitioner has not placed this magistrate in a position to entertain the same. There is no available record of proceedings before the state court nor is there a narrative statement of the evidence. No evidence of the issues raised in the alleged Rule 192.1 motion has been submitted. Whether the same issues raised in this federal petition were submitted for fair and due consideration by state court, is speculative. The claimed ineffectiveness of counsel, who represented petitioner during trial, is a general claim of a possible conflict of interest, without more. Even the charges that were brought and the conviction obtained, whether murder, felony murder, car theft or conspiracy, leaves this court in a vacuum. Petitioner took over twenty (20) years to finally raise a claim that counsel did not file a direct appeal to his conviction and prompts that prejudice need not be proven in order to prevail on this claim no matter how tardy it may seem.
The alleged conflict of interest of his counsel in representing another codefendant has not been adequately presented. Only the possibility of a conflict and not an actual conflict has been discussed. Whether petitioner was not allowed to testify at trial or it was part of a legal defense accepted by defendants cannot be measured against the weight of the evidence against the defendants, where a participating codefendant testified implicating both codefendants and credibility was assessed by the jury. Petitioner requests to be granted an evidentiary hearing to further prove his claims without a minimal proffer of what available evidence or witnesses he may present to meet his burden.
United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993);Barrett v. United States, 965 F.2d 1184, 1186 (1st Cir. 1992).
If the petition raises factual questions and the state has failed to provide a full and fair hearing, the district court is required to hold an evidentiary hearing. Townsend v. Sain, 372 U.S. 293 (1963).
Unless a state prisoner makes a strong showing of actual innocence, the State's interest in actual finality outweighs the prisoner's interest in obtaining yet another opportunity for review. Calderón v. Thompson, 523 U.S. 538, 118 S.Ct. 1489 (1998)
Cf. Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862 (1993) (the execution of an innocent defendant is a constitutionally intolerable event that infringes on the Eighth Amendment).
This magistrate opines that at this state of proceedings petitioner carries a heavy burden to establish ineffective assistance of his counsel, in addition to cause and prejudice to substantiate his federal habeas claim. The claim of miscarriage of justice and "actual innocence" is refuted by his own statements that he engaged in the conduct that caused the killing of a human being and agreed to assist codefendant in disposing of the corpse. That defendant did not actually pull the trigger is not consonant with a determination of actual in lieu of legal innocence to the conviction requiring post-conviction relief from the sentence imposed.
Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838 (1993);Perron v. Perrin, 742 F.2d 669 (1st Cir. 1984).
Actual innocence for purposes of federal habeas requires petitioner to show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt. United States v. Simpson, 175 F.3d 200 (1st Cir. 1999). See Schlup v. Delo. 513 U.S. 298, 327, 115 S.Ct. 851, 867 (1995).
Summary dismissal of a petition is appropriate when the petition is conclusively refuted by the alleged facts, by the files and the record of the case. United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).
It is thus recommended that the petition be DISMISSED.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time, waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986).