Mulero-Santana v. Laboy ( 1999 )

USCA1 Opinion

       [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 98-1582



                     EDGARDO MULERO SANTANA,



                           Petitioner,



                                v.



                 ZOE LABOY, ADMINISTRATOR OF THE

              PUERTO RICO DEPARTMENT OF CORRECTIONS,



                           Respondent.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF PUERTO RICO



       [Hon. Raymond L. Acosta, Senior U.S. District Judge]







                              Before



                     Selya, Circuit Judge,

                   Cyr, Senior Circuit Judge,

                   and Lipez, Circuit Judge.











     Teodoro Mendez Lebron on brief for petitioner.

     Gustavo A. Gelpi, Acting Solicitor General, Edda Serrano

Blasini, Deputy Solicitor General, and Leticia Casalduc Rabell,

Assistant Solicitor General, on brief for respondent.











December 8, 1999









            Per Curiam. Edgardo Mulero Santana ("Mulero") appeals

  from a dismissal of his habeas petition for failure to exhaust

  state remedies.  We affirm the dismissal on an alternative

  basis.

            Mulero was convicted of unlawful appropriation before

  a Puerto Rico superior court.  He contends that the

  Commonwealth court lacked jurisdiction to try him because,

  inter alia, the crime occurred in a federal post office.

  Mulero raised the jurisdictional issue before the trial court,

  which rejected it.  He raised the issue, again, before the

  intermediate appellate court, which also rejected it.  Finally,

  he raised the issue in a petition for certiorari filed with the

  Commonwealth's highest court.  That court denied the petition

  on the procedural ground that Mulero failed to attach certain

  copies of certain portions of the record, as required by local

  rule.  Mulero sought reconsideration indicating that the

  failure to comply with the local rule was due to attorney

  error.  The motion for reconsideration was denied.

            Mulero argues that he has exhausted his state

  remedies.  Specifically, he contends that although a collateral

  attack is technically available, further proceedings would be

  futile since the state courts have already resolved his claim

  against him.  See Brown v. Allen, 344 U.S. 443, 447 (1953)

  (holding that a prisoner does not have "to ask the state for

  collateral relief, based on the same evidence and issues

  already decided by direct review").  Although it argued non-

  exhaustion below, the Commonwealth now switches gears.  It

  argues that Mulero has exhausted state remedies but that his

  claim is procedurally defaulted.

            We are persuaded that Mulero has exhausted his claim.

  However, this conclusion gains him little since the

  "independent and adequate state ground doctrine" applies "to

  bar federal habeas when a state court declined to address a

  prisoner's federal claims because the prisoner had failed to

  meet a state procedural requirement."  Coleman v. Thompson, 501

  U.S. 722, 729-30 (1991).  The bar obtains unless there is

  "cause for the default and actual prejudice" or "failure to

  consider the claim[] will result in a fundamental miscarriage

  of justice."  Id. at 750.  "[A] 'fundamental miscarriage of

  justice' is defined as an 'extraordinary instance[] when a

  constitutional violation probably has caused the conviction of

  one innocent of the crime."  United States v. Barrett, 178 F.3d

  34, 48 (1st Cir. 1999) (quoting McCleskey v. Zant, 499 U.S. 467,

  494 (1991)).

            In the instant case, we conclude that the independent

  and adequate state ground doctrine applies, and that Mulero is

  procedurally barred from raising his claim in federal habeas.

  The Puerto Rico Supreme Court unambiguously rested its denial

  of Mulero's certiorari petition on a procedural ground.  Mulero

  conceded in the Commonwealth court that the Puerto Rico Supreme

  Court has been consistent in requiring strict compliance with

  its rules.  Attorney error cannot be "cause" for excusing the

  procedural default, since there is no federal constitutional

  right to counsel on a discretionary appeal to a state supreme

  court.  See Coleman, 501 U.S. at 753-57; Ross v. Moffit, 417

  U.S. 600 (1974).  Finally, there is no fundamental miscarriage

  of justice in holding Mulero to the procedural default since

  the claimed error does not relate to guilt or innocence.

            For the foregoing reasons, we affirm the dismissal.

  See Loc. R. 27(c).  In light of our reasoning, the judgment

  should be modified to reflect that the dismissal is with

  prejudice.

            Affirmed as modified.