Advisory Committee Notes to Rule 9 make it clear that a new claim asserted in a subsequent petition should not be entertained if the judge determines that the failure to raise it earlier is "inexcusable." Advisory Committee Notes to Rule 9 at pp. 426-27.
In 1991, the Supreme Court clarified the standard for determining what constitutes abuse of the writ. After an extensive recounting of the history of the writ, the Court, in McCleskey v. Zant, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991), stated that "abuse of the writ is not confined to instances of deliberate abandonment (of a claim,)" id. at 1467, and adopted the Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), "cause" and "prejudice" test, previously addressed exclusively to procedural default, in cases where there has been an abuse of the writ through inexcusable neglect.
McCleskey, 111 S. Ct. at 1470. Additionally, as in cases of procedural default, a petitioner who is unsuccessful in establishing cause may nevertheless be excused if he shows that a "a constitutional violation probably has caused the conviction of one innocent of the crime." Id.
As a threshold matter, it is to be noted that respondent bears the burden of pleading abuse of the writ with clarity and particularity. Id. Respondent correctly and explicitly states that Russo's writ history reveals that the claim of ineffective assistance of trial counsel was not raised in a prior petition. Thus, respondent has met this burden and the burden to disprove abuse shifts to Russo. See id.; see also Price v. Johnston, 334 U.S. 266, 292, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948). It is to be noted that a petitioner is not entitled to an evidentiary hearing if the district court determines as a matter of law that he cannot satisfy this standard. McCleskey, 111 S. Ct. at 1470.
The first element of disproving abuse of the writ requires that a petitioner demonstrate cause for his failure to raise the claim in an earlier petition. Simply put, a petitioner must show that the failure to raise the claim in a prior petition resulted from some external, objective factor such as "interference by officials" which made filing the claim impracticable, reasonable unavailability of the legal or factual basis of the claim, or constitutionally ineffective assistance of counsel. Id. at 1470 (quoting Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986)). The Supreme Court has instructed that it is a petitioner's conduct that is the focus of the doctrine of abuse of the writ. "The question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process." McCleskey, 111 S. Ct. at 1472 (citation omitted).
Although Russo argues to the contrary, the trial judge made a specific finding that Russo "knew at the time of trial who had apparently made the financial arrangements for his attorney by his own admission so such fact is hardly new," Opinion of Stark, J., dated September 13, 1989, at 3 (emphasis original), and, accordingly, denied that portion of Russo's § 440.10 motion on state procedural grounds. A thorough examination of the record in this case reveals no evidence which would tend to overcome the trial judge's conclusion. See 28 U.S.C. § 2254(d) (absent one of eight enumerated factors, state court finding of fact, if "evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct"); see also Miller v. Fenton, 474 U.S. 104, 105, 88 L. Ed. 2d 405, 106 S. Ct. 445, 447 (1985) (state court findings of fact are to be evaluated under factors enunciated in § 2254(d) (footnote omitted)).
Thus, this Court determines that, as a matter of law, Russo has failed to demonstrate cause for failing to raise, in an earlier habeas petition, his claim of ineffective assistance of trial counsel.
That said, this Court need not consider whether there has been actual prejudice to petitioner. See McCleskey, 111 S. Ct. at 1474. Moreover, the Court declines to exercise its discretion to entertain the petition as there is absolutely no evidence to indicate that a "fundamental miscarriage of justice" has occurred. See id. at 1470.
Accordingly, Russo's petition for a writ of habeas corpus is dismissed as an abuse of the writ.
February 26, 1992
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE