Maldonado-Pagan v. Warden , 145 F. App'x 375 ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2684
MARIANO MALDONADO-PAGÁN,
Petitioner, Appellant,
v.
MR. MALAVÉ, WARDEN, BAYAMÓN CORRECTIONAL FACILITY,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
Before
Torruella, Selya and Lynch,
Circuit Judges.
José R. Olmo-Rodríguez, on brief, for appellant.
Yvonne M. Menéndez-Calero, with whom Quiñones & Sánchez,
P.S.C., was on brief, for appellee.
August 9, 2005
Per Curiam. Appellant-petitioner Mariano Maldonado-Pagán
appeals a district court order dismissing his 28 U.S.C. § 2254petition for failure to exhaust state remedies. Finding no cause
and prejudice even assuming a procedural default, we affirm.
I
On March 6, 1992, Maldonado pled guilty to three counts
of first degree murder and grand arson for the killing and burning
of the bodies of his wife and two children. He was convicted and
sentenced to more than 300 years imprisonment by the Superior Court
of the Commonwealth of Puerto Rico. Maldonado failed to appeal his
conviction or sentence.
On April 21, 1997, Maldonado filed a pro se, state habeas
corpus petition before the Puerto Rico Supreme Court. Although the
Supreme Court denied it without comment, the petition was
improperly presented pursuant to § 1741 of the Puerto Rico Code of
Criminal Procedure, which requires petitioners to file a Rule 192.1
motion1 in the trial court prior to seeking habeas relief. P.R.
1
Rule 192.1 provides, in relevant part:
Any person who is imprisoned by virtue of a judgment
rendered by any Division of the Court of First Instance
and who alleges the right to be released because . . .
the sentence was imposed in violation of the Constitution
or the laws of the Commonwealth of Puerto Rico or of the
Constitution and laws of the United States, . . . may
file a motion, in the part of the court which imposed the
sentence, to vacate, set aside, or correct the judgment.
P.R. Laws Ann. tit. 34, App. II, R. 192.1 (1963). The Puerto Rico
Supreme Court describes Rule 192.1 as "harmoniz[ing] these
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Laws Ann. tit. 34, § 1741(c) ("No judge shall consider a writ of
habeas corpus prosecuted by an inmate imprisoned by virtue of a
final judgment which has not exhausted the remedy provided by Rule
192.1 of the Rules of Criminal Procedure, App. II of this title.").
On May 22, 1998, Maldonado filed a pro se Rule 192.1
motion before the trial court. The petition was denied, and
Maldonado did not appeal the denial in the commonwealth courts.
Maldonado subsequently filed a federal § 2254 habeas
petition,2 arguing, as a basis for relief, ineffective assistance
of counsel. On October 9, 2003, the district court dismissed the
claim for failure to exhaust state remedies because Maldonado had
not appealed the trial court's denial of his Rule 192.1 motion.
Maldonado-Pagán v. Malavé, No. 98-2383 (D.P.R. Oct. 9, 2003).
This appeal follows. We review a district court's
dismissal of a habeas petition de novo. See, e.g., Saint Fort v.
Ashcroft, 329 F.3d 191, 202 (1st Cir. 2003).
procedures," -- i.e., the appeal, the motion to set aside a
judgment, the writ of habeas corpus, and the writ of coram nobis --
by "providing a motion through which all the necessary elements of
judgment may be submitted to the Court, to allow the latter to
determine the validity of the conviction." Pueblo v. González
Polidura, 18 P.R. Offic. Trans. 939, 953 n.5 (P.R. 1987) (quoting
the Senate Judiciary Committee report at 5 Servicio Legislativo de
P.R. 592-93 (1967)).
2
28 U.S.C. § 2254, states, in relevant part: "An applicant shall
not be deemed to have exhausted the remedies available in the
courts of the State, within the meaning of this section, if he has
the right under the law of the State to raise, by any available
procedure, the question presented." 28 U.S.C. § 2254(c).
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II
Maldonado argues that his claim is procedurally barred in
the commonwealth court, but should nonetheless be excused for
purposes of exhaustion since he can demonstrate cause for the
procedural default -- ineffective assistance of counsel -- and
prejudice resulting therefrom. We are not convinced.
At the outset, we note, and the government concedes as
much, that Maldonado's claim does not appear to be procedurally
barred and therefore state remedies have not been exhausted.
Maldonado contends that his failure to appeal within thirty days'
notice of the trial court's denial of his Rule 192.1 motion bars
subsequent state appeals, thus foreclosing the resolution of his
case by the commonwealth's highest tribunal. The government argues
otherwise, stating that Maldonado may still file a state habeas
appeal, as it is separate from a Rule 192.1 motion. See 34
L.P.R.A. §§ 1741-1781. Given that the commonwealth's highest court
has not had the opportunity to decide Maldonado's habeas claim on
its merits, the government argues, his claim has not been
exhausted. See García v. Ramírez, 337 F. Supp. 39 (D.P.R. 1971)
(no federal jurisdiction for lack of exhaustion since prisoner
failed to appeal the trial court's denial of his habeas petition to
the Puerto Rico Supreme Court). It is, after all, up to "the state
court to decide whether the petitioner is procedurally barred
. . . ." Rodríguez v. Warden, Escuela Indus. De Mujeres, Vega Alta
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Puerto Rico, 791 F. Supp. 41, 43 (D.P.R. 1992). The government
even agreed during oral arguments to stipulate that it will not
oppose Maldonado's state habeas petition, should he choose to file
one, on the grounds that it is procedurally barred.
In any event, even assuming, favorably to Maldonado, that
further state proceedings are procedurally barred, we find it
difficult to find cause and prejudice from the procedural default.
Generally, a state court's finding that a "defendant procedurally
defaulted a claim bars federal habeas corpus relief on that claim
unless that defendant as a petitioner shows either cause for the
default and prejudice from the claimed violation of federal law, or
that a fundamental miscarriage of justice will result if the claim
is not considered." Gunter v. Maloney, 291 F.3d 74, 78 (1st Cir.
2002) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991))
(emphasis added). To show "cause," "the prisoner must show 'that
some objective factor external to the defense impeded counsel's
efforts to comply with the State's procedural rule.'" Id., 291
F.3d at 81 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
One such factor is "ineffective assistance of counsel at a level
which violates the Sixth Amendment," id. (citing Coleman, 501 U.S.
at 752), but that "ineffective assistance claim must itself
ordinarily be fairly presented to the state courts and exhausted,"
id. (citing Edwards v. Carpenter, 529 U.S. 446, 450-54 (2000)).
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In the instant case, Maldonado cites as "cause" the lack
of legal assistance after his conviction and sentencing which
resulted in an alleged procedural default. However, since it is
"established that there is no right to counsel in state collateral
proceedings," Coleman, 501 U.S. at 755 (citing Pennsylvania v.
Finley, 481 U.S. 551 (1987); Murray v. Giarratano, 492 U.S. 1(1989)), appellant's lack of counsel could not constitute "cause"
to excuse a procedural default. Id. at 757.
We also reject Maldonado's claim that a fundamental
miscarriage of justice would occur if his claim is not considered,
on the theory that his lawyer's failure to raise his mental
condition resulted in a conviction of one who is innocent. "To
show that a fundamental miscarriage of justice would occur in the
habeas context, 'petitioner must establish actual innocence.'"
Gunter, 291 F.3d at 83 (emphasis added). This is indeed a narrow
exception, for "'[w]ithout any new evidence of innocence, even the
existence of a concededly meritorious constitutional violation is
not in itself sufficient to establish a miscarriage of justice that
would allow a habeas court to reach the merits of a barred claim.'"
Burks v. Dubois, 55 F.3d 712, 718 (1st Cir. 1995) (quoting Schlup
v. Delo, 513 U.S. 298, 316 (1995)). Here, we find no new credible
evidence that Maldonado is actually innocent of the murders and
arson, and take note of the fact that Maldonado was in a general
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population facility -- not a mental facility -- during his alleged
procedural default.
For the reasons stated, the district court's order
dismissing Maldonado's habeas corpus petition is affirmed.
Affirmed.
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