Montoya v. Collins ( 1993 )


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  •                   UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _______________________
    No. 93-1261
    _______________________
    RAMON MONTOYA,
    Petitioner-Appellant,
    versus
    JAMES COLLINS, Director
    Institutional Division Texas
    Department of Corrections,
    Respondent-Appellee.
    _________________________________________________________________
    Appeal from the United States District Court
    for the Northern District of Texas
    _________________________________________________________________
    (March 24, 1993)
    Before POLITZ, Chief Judge, JOLLY, and JONES, Circuit Judges.
    PER CURIAM:
    Petitioner-Appellant   Ramon   Montoya,   scheduled   to   be
    executed after midnight tonight, Wednesday, March 24, 1993, has
    applied to this court for a certificate of probable cause to
    appeal.   Concurrently, he seeks leave to appeal in forma pauperis
    and a stay of execution.    This is his second appearance in our
    court, his earlier habeas appeal having been considered and denied
    in Montoya v. Collins, 
    955 F.2d 279
    (5th Cir. 1992), reh'g denied,
    959 f.2d 969, cert. denied, ___ U.S. ___, 
    113 S. Ct. 820
    (1993).
    We deny CPC and a stay.
    This court lacks jurisdiction to hear an appeal in this
    case unless a certificate of probable cause is granted.                    Fed. R.
    App. P. 22(b).        To obtain a certificate of probable cause, Montoya
    must "make a substantial showing of the denial of a federal right."
    Barefoot v. Estelle, 
    463 U.S. 880
    , 893, 
    103 S. Ct. 3383
    , 3394
    (1983). To sustain this burden, Montoya "must demonstrate that the
    issues are debatable among jurists of reason; that a court could
    resolve the issues [in a different manner]; or that the questions
    are   adequate     to    deserve     encouragement        to   proceed   further."
    
    Barefoot, 463 U.S. at 493
    n.4, 103 S. Ct. at 3394 
    n.4.
    The procedural background of this case is related in the
    Fifth Circuit's above-cited previous opinion.                  After the decision
    in that appeal, Montoya was scheduled for execution before sunrise
    on January 27, 1993, and, having unsuccessfully proceeded for a
    second time through the state courts on a habeas petition, was
    granted   a    stay     by   the   Supreme   Court   on    January   26,   pending
    disposition of his petition of certiorari.                On February 22, 1993,
    the Supreme Court denied certiorari review and, on February 23, the
    trial court rescheduled Montoya's execution for March 25, 1993.
    In this, his second federal habeas petition, Montoya
    raises a variant of the issue that the state and federal courts
    have previously rejected:            that his Sixth Amendment rights were
    violated because "the state knowingly questioned the petitioner
    after he was represented by counsel in the absence of his counsel."
    In our previous opinion, we described his challenge as follows:
    2
    Montoya argues first that his interrogation by
    the Dallas Police Department violated his
    right to counsel under the Sixth Amendment and
    the prophylactic rule of Michigan v. Jackson,
    
    475 U.S. 625
    , 
    106 S. Ct. 1404
    , 
    89 L. Ed. 2d 631
    (1986).
    
    Montoya, 955 F.2d at 282
    .    Montoya's petition, filed in federal
    district court on March 23, 1993, as much as admits duplication, as
    it states:
    The petitioner recognizes that the Federal
    Courts frown upon successor petitions filed in
    state habeas corpus proceedings. However, the
    issue presented here was raised in an earlier
    petition and the decision at that time was
    based upon the petitioner's failure to
    affirmatively assert his right to counsel at
    the magistrate's hearing. This Court [sic],
    nor did any other court, reach the issue that
    the questioning of a defendant after he was
    represented   by   counsel  once   the   Sixth
    Amendment rights had attached was a violation
    of his constitutional rights. This petition
    now gives this Court a second chance to enter
    the proper finding.    Simply put, after the
    attachment of sixth amendment rights, a person
    represented by counsel cannot be interrogated
    without informing counsel.
    There is no question that this filing of a federal
    petition for habeas relief constitutes an abuse of the writ or a
    successive petition under Rule 9(b), Rules Governing § 2254 Cases
    in the United States District Courts.    Unless a petitioner shows
    cause and prejudice, a federal court may not reach the merits of
    successive claims, which raise grounds identical to grounds heard
    and decided on the merits in a previous petition, Kuhlmann v.
    Wilson, 
    477 U.S. 436
    , 
    106 S. Ct. 2616
    (1986), or new claims, not
    raised in an earlier federal petition.   McCleskey v. Zant, 499 U.S.
    ___, 
    111 S. Ct. 1454
    (1991).   However, "even if a state prisoner
    3
    cannot meet the cause and prejudice standard a federal court may
    hear the merits of the successive claims if the failure to hear the
    claims would constitute a 'miscarriage of justice.'"                  Sawyer v.
    Whitley, ___ U.S. ___, 
    112 S. Ct. 2514
    , 2518 (1992).                The question
    whether there has been a miscarriage of justice "is concerned with
    actual as compared with legal innocence."                Sawyer, ___ U.S. ___,
    
    112 S. Ct. 2519
    .   To fall within the actual innocence exception, a
    habeas petitioner must show either that the trier of facts would
    have entertained a reasonable doubt of his guilt, Kuhlmann v.
    Wilson, 
    477 U.S. 436
    , at 454 n.17, 
    106 S. Ct. 2616
    , 2627 n.17
    (1986), or where the alleged error pertains to the sentencing phase
    of the capital trial, that no reasonable juror would have found the
    petitioner eligible for a death penalty under applicable state law.
    Sawyer v. Whitley, ___ U.S. at ___, 112 S. Ct. at 2517.
    Montoya did not even allege in this second petition that
    he could establish cause and prejudice for failing to raise his
    newly-fashioned    version   of    his      Sixth   Amendment   claim    in   his
    previous   petition.     He       has       not   even   alleged,    much     less
    demonstrated, that a "miscarriage of justice" regarding actual
    innocence or "actual innocence of the death penalty" could be
    established in his case.     This petition must accordingly be viewed
    as an abuse of the writ or an impermissible successive petition and
    may not be considered on its merits.
    Further, because Montoya could have raised this issue at
    a much earlier date in his criminal proceedings, and because he has
    delayed raising it until 48 hours before the scheduled execution
    4
    time,   it   is   arguable   that   even   if   the   McCleskey   test   were
    satisfied, equity would prevent the granting of habeas relief.
    Gomez v. United States District Court for the Northern District of
    California, ___ U.S. ___, 
    112 S. Ct. 1652
    , 1653 (1992).
    For these reasons, Montoya has raised no issue on which
    we may grant habeas corpus relief, hence, he has raised no issue
    capable of debate among reasonable jurists.
    The motion to proceed in forma pauperis is GRANTED;
    motion for certificate of probable cause is accordingly DENIED;
    motion for stay of execution is DENIED.
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