Opinion
Civil No. 02-718 ADM/FLN
November 14, 2002
Juan Jose Zuniga-Hernandez, pro se.
Richard Newberry, Esq., Assistant United States Attorney, on behalf of Respondent.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Petitioner Juan Jose Zuniga-Hernandez's ("Petitioner") Objections [Docket No. 9] to Magistrate Judge Franklin L. Noel's August 29, 2002, Report and Recommendation ("RR") [Docket No. 8]. Judge Noel recommended in the RR that Petitioner's Petition for Writ of Habeas Corpus [Docket No. 1] be summarily dismissed with prejudice and that Respondent's Motion to Dismiss [Docket No. 4] be granted. For the reasons set forth below, the RR is adopted. The factual background and procedural history for this matter is adequately set forth in the RR and is incorporated by reference for the purposes of Petitioner's present objections.
II. DISCUSSION
A district court shall make an independent, de novo evaluation of those portions of the RR to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.1(c)(2).
In his April 2002 Petition for Habeas Corpus, Petitioner contends that his sentence to a consecutive term of 30 years for carrying firearms and machine guns during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1), is improper. Petitioner relies on the United States Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995), where the Court clarified the requirements of "use" of a firearm under 18 U.S.C. § 924(c)(1). In its Motion to Dismiss, Respondent contends that the Petition should be dismissed as an abuse-of-the-writ because Petitioner previously raised the same claim in another Petition that was considered and rejected by the United States District Court for the Southern District of Illinois in Zuniga-Hernandez v. Gilkey, No. 99-974-JPG (S.D.Ill. Aug. 10, 2001).
The abuse-of-the-writ doctrine "prohibits subsequent habeas consideration of claims not raised, and thus defaulted, in [a prior] habeas proceeding." McCleskey v. Zant, 499 U.S. 467, 490 (1991). When a petitioner raises grounds in a subsequent petition that are merely a restatement of the claims considered and rejected in a prior habeas petition, the petitioner has clearly abused the writ. LaRette v. Bowersox, 70 F.3d 986, 987 (8th Cir. 1995) (holding that where all of the claims raised in a habeas petition not only could have been raised, but were raised and rejected in a prior petition, the subsequent habeas petition constituted clear abuse-of-the-writ).
An abuse-of-the-writ inquiry focuses on a petitioner's acts in order to determine whether he has a legitimate excuse for failing to raise a claim at the appropriate time. McCleskey, 499 U.S. at 490. The United States Supreme Court explained the procedure and allocation of burdens associated with the abuse-of-the-writ doctrine in McCleskey as follows:
[W]hen a prisoner files a second or subsequent habeas petition, the government bears the burden of pleading abuse of the writ. This burden is satisfied if the government, with clarity and particularity, notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then shifts to petitioner. To excuse his failure to raise the claim earlier, he must show cause — e.g., that he was impeded by some objective factor external to the defense, such as governmental interference or the reasonable unavailability of the factual basis for the claim — as well as actual prejudice resulting from the errors of which he complains. He will not be entitled to an evidentiary hearing if the district court determines as a matter of law that he cannot satisfy the cause and prejudice standard. However, if he cannot show cause, the failure to earlier raise the claim may nonetheless be excused if he can show that a fundamental miscarriage of justice — the conviction of an innocent person — would result from a failure to entertain the claim.
McCleskey, 499 U.S. at 468.
Respondent has asserted its claim of abuse-of-the-writ. With clarity and particularity, Respondent demonstrated Petitioner's prior writ history and satisfied its burden. In an attempt to satisfy his burden to disprove that he abused the writ, Petitioner denies that he raised the same issue in his previous petition. In his first habeas petition, Petitioner argued that his 30-year consecutive sentence is in violation of the holding in Bailey. Petitioner's primary argument for seeking habeas relief in the present Petition is the same; he again contends that his 30-year consecutive sentence is in violation of Bailey. This Court agrees with Judge Noel's determination that there is no distinction between Petitioner's current arguments and those raised in his prior petitions.
In the present Petition, Petitioner asks this Court to infer that he was actually innocent and was entrapped by Respondent. See Petition at 6-8. Petitioner has not previously raised the claims of entrapment or actual innocence and therefore these claims are new. To excuse his failure to raise the claims earlier, Petitioner argues that he "is a native Mexican and that he has only been able to depend on the assistance of others, both in the Public Defender's Office and within the various institutions in which he has been incarcerated. He has had no independent knowledge of the law, nor any ability to research the law in his native Spanish." See Petitioner's Traverse at 1. This Court agrees with Judge Noel's finding that the reasons stated in the Petition are insufficient to sustain a showing of cause as required to defeat a claim of abuse-of-the-writ.
Petitioner argues in his Objections to the RR that he is language impaired, mentally handicapped, and not legally trained and should not be expected to plead his issues precisely without the assistance of counsel for his § 2255 Motion. These are essentially duplications of the arguments made in the present Petition. Petitioner has not shown that he was impeded by these impairments or by some objective factor external to the defense, such as governmental interference or the reasonable unavailability of the factual basis for the claim. The reasons given in the Objections to the RR are also insufficient to sustain a showing of cause.
Judge Noel correctly found that Petitioner did not show that a fundamental miscarriage of justice would result from a failure to grant the Petition. Petitioner answered "yes" when asked by the sentencing court whether he understood that if the court accepted his guilty plea he would not be entitled to a trial and the Respondent would not be required to prove him guilty. See Villarreal Decl. Ex. D. at 8, 13, and 14 [Docket No. 5]. Petitioner's attorney was asked by the court whether he was satisfied that he (Petitioner) is pleading guilty voluntarily and understandingly and with full knowledge of the consequences of his plea. Id. The attorney answered "yes" and Petitioner stated through an interpreter that he heard and understood the questions posed to the attorney and that he did not have any comments concerning the statements made by the attorney. Id. Petitioner and his attorney were given a full and fair opportunity to claim entrapment or actual innocence instead of pleading guilty to the charges. The failure to raise these claims earlier is not legally excusable. Petitioner is not entitled to an evidentiary hearing, as he did not meet his burden to disprove abuse-of-the-writ.
After a de novo review of the applicable law and the record, including the Objections to the RR, this Court finds that Judge Noel's analysis and recommendations are correct and complete. The RR is adopted.
III. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Petitioner's Objections [Docket No. 9] are DENIED,
2. The RR [Docket No. 8] is ADOPTED,
3. Petitioner's Petition for Writ of Habeas Corpus [Docket No. 1] is DENIED, and
4. Respondent's Motion to Dismiss [Docket No. 4] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.