Opinion
Civil No. SA-03-CA-303-OG.
November 17, 2005
ORDER DENYING MOTION TO RECONSIDER DENIALS OF POST-JUDGMENT MOTIONS
The matter before the Court is petitioner's motion, filed October 26, 2005 (Docket entry no. 35), requesting this Court to reconsider its previous Orders denying petitioner's post-Judgment motions and petitioner's requests for an expanded Certificate of Appealability ("CoA").
In a Memorandum Opinion and Order issued August 29, 2005, this Court denied petitioner's federal habeas corpus petition but sua sponte granted petitioner a Certificate of Appealability on a single claim. Ruiz v. Dretke, 2005 WL 2146119, *34 (W.D. Tex. August 29, 2005). In pertinent part, this Court concluded petitioner had failed to exhaust available state remedies, and thereby procedurally defaulted, on potentially meritorious claims of ineffective assistance and improper jury instructions. Ruiz v. Dretke, 2005 WL 2146119, *10-*16.
On September 13, 2005, this Court denied petitioner's motion to alter or amend judgment, in which petitioner argued this Court had erred in concluding petitioner had procedurally defaulted on his unexhausted ineffective assistance claims or, alternatively, petitioner had satisfied the fundamental miscarriage of justice exception to the procedural default doctrine. Ruiz v. Dretke, 2005 WL 2402503, *2 (W.D. Tex. September 13, 2005).
On September 15, 2005, this Court denied petitioner's motion to stay proceedings and hold this cause in abeyance, explaining applicable state law precluded petitioner from returning to state court at that juncture to obtain a ruling on the merits of his unexhausted ineffective assistance claims because the factual and legal bases for petitioner's unexhausted claims had been readily available at the time petitioner filed his state habeas corpus application. Ruiz v. Dretke, 2005 WL 2402669, *2-*3 (W.D. Tex. September 15, 2005).
On October 13, 2005, this Court denied petitioner's requests, both implicit and explicit, for a Certificate of Appealability with regard to this Court's conclusions petitioner had procedurally defaulted on his unexhausted ineffective assistance claims. See Ruiz v. Dretke, 2005 WL 26'3, *1-*5 (W.D. Tex. October 13, 2005) (holding (1) alleged defects in petitioner's state habeas corpus proceedings did not warrant either federal habeas relief or otherwise furnish a basis for excusing petitioner's procedural default, (2) the glaringly deficient performance of petitioner's state habeas counsel could not excuse petitioner's procedural default, (3) petitioner could not satisfy the fundamental miscarriage of justice exception to the procedural default doctrine, and (4) reasonable jurists could not disagree over any of the foregoing conclusions).
As this Court explained in Section IX of the Memorandum Opinion and Order issued August 29, 2005, petitioner procedurally defaulted on his unexhausted ineffective assistance and jury instruction claims by failing to present same to the state courts during his state habeas corpus proceeding and reasonable minds could not differ over the foregoing conclusion. Ruiz v. Dretke, 2005 WL 2146119, *12-*16 (W.D. Tex. August 29, 2005).
While this Court has taken great pains in its previous Orders to explain that reasonable minds could disagree over whether petitioner's ineffective assistance claims possess merit, there is no arguable legal basis for the conclusion that any room for reasonable disagreement exists with regard to the reality of petitioner's procedural default on his unexhausted ineffective assistance claims. Absolutely nothing other than the incompetence of petitioner's state habeas counsel prevented petitioner from fairly presenting his unexhausted ineffective assistance claims to the state habeas court during petitioner's state habeas corpus proceeding. As this Court has previously explained at great length, however, in this Circuit even the grossest incompetence by a state habeas counsel cannot form the basis for a finding of "cause" under the "cause and actual prejudice" exception to the procedural default doctrine. Ruiz v. Dretke, 2005 WL 2146199, *14; Ruiz v. Dretke, 2005 WL 26'3, *1-*3. Furthermore, adoption of such a rule by this Court in this federal habeas proceeding is foreclosed by the non-retroactivity doctrine of Teague.
Insofar as petitioner argues for the recognition of a new rule under one of the exceptions to the Teague doctrine, his arguments ignore the facts of his case, which belie any contention petitioner was "actually innocent" of capital murder. In point of fact, when the evidence at petitioner's trial is viewed in the light most favorable to the jury's verdict, there is not even the remotest possibility petitioner was innocent of his capital offense. The only two exceptions to the Teague non-retroactivity doctrine are reserved for (1) new rules forbidding criminal punishment of certain primary conduct and rules prohibiting a certain category of punishment for a class of defendants because of their status or offense and (2) "watershed" rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, i.e., a small core of rules requiring observance of those procedures that are implicit in the concept of ordered liberty. O'Dell v. Netherland, 521 U.S. 151, 157, 117 S.Ct. 1969, 1973, 138 L.Ed.2d 351 (1997). The new exception to the procedural default doctrine urged by petitioner herein falls into neither of these two exceptions. Because it focuses on a proceeding wholly collateral to the original state criminal trial and direct appeal, the new rule urged by petitioner herein, i.e., one which ignores any procedural default arising from a state-court-appointed state habeas counsel's deficient performance, does not implicate the fundamental fairness of the petitioner's original trial or direct appeal. In short, this Court respectfully declines to adopt a new rule of constitutional criminal procedure applicable exclusively in the context of a state habeas corpus proceeding.
Petitioner argues quite convincingly that, because (1) the first opportunity he had to present his ineffective assistance claim came during his state habeas corpus proceeding, (2) the state court appointed a state habeas counsel not of petitioner's choosing to represent petitioner during his state habeas corpus proceeding, (3) petitioner possessed no right to hybrid representation in his state habeas corpus proceeding, and (4) petitioner's state-court-appointed state habeas counsel abjectly failed to comply with petitioner's requests that claims of ineffective assistance by petitioner's trial counsel be presented during petitioner's state habeas corpus proceeding, the deficient performance of petitioner's state habeas counsel should not foreclose federal habeas merits review of petitioner's ineffective assistance claims. Petitioner points out the circumstances surrounding his direct appeal and state habeas corpus proceeding (i.e., the fact he was saddled with counsel he did not want who refused to communicate with him or raise points of error or state habeas grounds he wished presented to the state appellate courts) effectively conspired to prevent him from raising his complaints of ineffective assistance by his trial counsel until he reached this Court. The foregoing combination of factors, petitioner argues further, makes application of federal procedural default principles to his case wholly inequitable and inconsistent with the principles underlying both the exhaustion doctrine and the procedural default doctrine, neither of which find their genesis in federal constitutional law. Petitioner is correct insofar as he identifies principles of comity as the origin of both these doctrines. Petitioner also accurately points out individual Justices of the Supreme Court have made clear their view that court has not yet definitively determined whether deficient performance by a state habeas counsel can ever excuse a procedural default.
Nonetheless, the Fifth Circuit has already considered the foregoing arguments and concluded because there is no constitutional right to the assistance of counsel in a state post-conviction collateral proceeding, any deficiency in the performance of a petitioner's state habeas counsel cannot rise to the level of cause for purposes of the "cause and actual prejudice" exception to the procedural default doctrine. See Elizalde v. Dretke, 362 F.3d 323, 329-31 (5th Cir. 2004) (rejecting arguments that (1) the procedural default doctrine did not apply to unexhausted claims where the failure of the petitioner to fairly present those claims to the state courts rests solely with the petitioner's state habeas counsel and (2) due process principles require a State to furnish a state prisoner with constitutionally effective representation in a state habeas corpus proceeding), cert. denied, ___ U.S. ___, 125 S.Ct. 293, 160 L.Ed.2d 80 (2004).
While petitioner did formally protest the state trial court's appointment of his trial counsel to serve as petitioner's state appellate counsel, there is nothing in the record currently before this Court indicating petitioner made a similar protest with regard to the attorney the state court appointed to represent petitioner in petitioner's state habeas corpus proceeding. This Court offers no opinion on the merits of petitioner's arguments herein in those situations in which a convicted state criminal defendant has actively sought to have his state-court-appointed state habeas counsel dismissed. While the Sixth Amendment does not apply in the context of a collateral challenge to an otherwise final state criminal conviction, the principles which underlay the Supreme Court's Sixth Amendment analysis in Faretta v. California, 422 U.S. 806, 814, 95 S.Ct. 2525, 2530-31, 45 L.Ed.2d 562 (1975) (holding the Sixth Amendment's right to the assistance of counsel implicitly embodies a correlative right to dispense with a lawyer's help and to voluntarily and intelligently waive the right to assistance of counsel), might have at least some application to a situation in which a state court forces an unwilling state prisoner to accept a court-appointed state habeas counsel as a condition to proceeding with a state habeas corpus action. Petitioner does not identify any act he undertook which alerted the state habeas court that he did not wish to be represented by court-appointed counsel during his state habeas corpus proceeding. Whatever the merits of refusing to permit the deficient performance of a state habeas counsel to excuse a procedural default where the convicted defendant had a choice as to whether he would proceed pro se during his state habeas proceeding, serious constitutional issues might well be raised if a state habeas court refused to permit a state prisoner to proceed pro se before that court and the State then sought to rely upon that same prisoner's state habeas counsel's deficient performance as a basis for a finding of a procedural default in a subsequent federal habeas corpus proceeding.
Obvious considerations of comity apply where a state prisoner seeking federal habeas relief seeks to excuse his own pro se failure to exhaust state habeas remedies on a particular claim with the argument his pro se representation of himself during his state habeas corpus proceeding failed to satisfy federal constitutional standards. In contrast, where a state prisoner has been made the unwilling victim of an incompetent state-court-appointed state habeas counsel's neglect, concerns of comity weigh far less in favor of ignoring the merits of a procedurally defaulted, yet substantial, federal constitutional claim.
Accordingly, it is hereby ORDERED that all relief requested in petitioner's "motion to reconsider, alter or amend, judgment and order denying application for certificate of appealability," filed October 26, 2005 (Docket entry no. 35), is DENIED.