Judge Howard G. Munson. Jimenez v. Walker, No. 90 Civ. 731 (N.D.N.Y. Feb. 15, 1991).
In his most current petition for a writ of habeas corpus, Jimenez argues that at no time in the state proceedings against him was he made aware of the element of intent required for a conviction of murder in the second degree. Secondly, petitioner argues that he was denied effective assistance of counsel, because his counsel in the state proceedings allegedly told him erroneously that if convicted after trial, the maximum that he would be sentenced to would be thirty-five (35) years to life imprisonment, where instead, the correct maximum would have been twenty-five (25) years to life in prison.
Respondent argues that the petition should be dismissed because it raises new grounds which were not raised in the first habeas corpus petition. Respondent argues that the failure to raise the issues complained of at bar constitutes "abuse of the writ." Rule 9(b) of the Rules Governing 28 U.S.C. § 2254 cases permits the district court to dismiss successive petitions based on "new or different" grounds, and respondent has thus moved for summary judgment.
A. Abuse of the Writ
The state must plead the defense of abuse of the writ affirmatively. McCleskey v. Zant, 499 U.S. 467, 494, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991). Once the defense has been pled adequately, the petitioner bears the burden of showing that he or she has not abused the writ. Id. "To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom". Id. To show cause, petitioner must show that "some objective factor external to the defense impeded counsel's efforts" in the prior petition. Id. at 493, (quoting Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986)). Once a petitioner has established cause, "he must show 'actual prejudice' resulting from the errors of which he complains." McClesky at 494, (quoting United States v. Frady, 456 U.S. 152, 168, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982)). In certain rare cases, the court retains the authority to issue a writ of habeas corpus even when the petitioner fails to show cause and/or prejudice. These cases are cases which are "implicating a fundamental miscarriage of justice." Id. The instance where a court should grant the petition is, in other words, left for the occasion where a "constitutional violation probably has caused the conviction of one innocent of the crime." Id. Furthermore, "the petitioner's opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that the petitioner can not satisfy the standard." Id.
In the case at bar, petitioner has failed to show cause why he failed to previously bring the grounds alleged in his current petition. Petitioner argues that he did not exhaust his state court remedies with respect to these claims until 1995,
and that it would thus not have been possible to include them in his first federal petition. The Supreme Court has noted that such arguments do not satisfy the cause requirement to excuse petitioner of his failure to raise the claim in the first petition. The court in McClesky cites Rose v. Lundy, 455 U.S. 509, 521, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982) (plurality opinion), where it was held that a prisoner who proceeds with exhausted claims in a first federal petition and sets aside nonexhausted claims risks dismissal of subsequent federal petitions. McClesky, 499 U.S. at 488-489.
Jimenez has failed to demonstrate why he should be excused from having his second petition dismissed as an abuse of the writ. Petitioner's new claims are not associated with the discovery of any new evidence, and all of the facts constituting this claim were available to petitioner when he filed his first petition for habeas corpus. Further, as mentioned above, the petitioner must establish that an external impediment prevented him from including in his prior petition the grounds alleged in the petition at bar. There is no evidence that any external impediment prevented Jimenez from alleging in his prior petition that he was not made aware of the fact that one of the elements of murder in the second degree was "intent," and that he was denied effective assistance of counsel.
Because the petitioner has not been able to establish sufficient cause, the court does not find it necessary to ponder whether petitioner suffered actual prejudice, as cause and prejudice are both required to excuse petitioner to bring a successive writ.
Thus, the only question remaining is whether a miscarriage of justice will result from the dismissal of the petition for abuse of the writ. The court finds that a fundamental miscarriage of justice will not result, of the magnitude described in McClesky. The court observes that petitioner at no time in any materials submitted to the court made an allegation that he is, in fact, innocent. Rather, Jimenez does not deny that he killed, but argues he did not intend to kill. Thus, the court finds that a fundamental miscarriage of justice will not occur if the petition is dismissed, or the motion for summary judgment is granted.
Therefore, because the petitioner has failed to show acceptable cause why the grounds newly raised in the petition before the court could not have been previously raised, the court recommends that the motion for summary judgment be granted, and the petition be dismissed.
Accordingly, it is
RECOMMENDED, that the petition be dismissed. Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days within which to file written objections to the foregoing report. Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 121 L. Ed. 2d 696, 113 S. Ct. 825, (1992). Such objections shall be filed with the Clerk of the Court with a copy to be mailed to the chambers of the undersigned at 10 Broad Street, Utica, New York 13501. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir. 1989); and it is
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation, by regular mail, upon the parties to this action.
David N. Hurd
United States Magistrate Judge
Dated: August 22, 1996
Utica, New York