claims is barred unless the [inmate] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Id. at 750. Such an approach acknowledges "the important interest in finality served by state procedural rules, and the significant harm to the States that results from the failure of federal courts to respect them." Id.
"Cause" for a procedural default exists if the petitioner can demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). Prejudice is demonstrated by showing that the errors worked to the petitioner's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). Finally, a fundamental miscarriage of justice is established by showing that a constitutional violation "has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496; Schlup v. Delo, 513 U.S. 298, 130 L. Ed. 2d 808, 115 S. Ct. 851 (1995).
In the instant case, Jordan clearly has not exhausted his state remedies. He did not file a direct appeal or appeal the denial of his CPL § 440.10 motions. Therefore, he has not presented the substance of his federal constitutional claims to any New York State court, let alone that state's highest court. Further, Jordan's failure to timely file a notice of appeal or receive an extension of time in which to do so gave rise to procedural default. Moreover, all the claims raised in Jordan's two CPL § 440.10 motions were rejected on state law procedural grounds, namely that they were barred by a rule precluding claims that could be raised on direct appeal, but were not.
Because Jordan has defaulted his federal claims in state court pursuant to independent and adequate state procedural rules, federal habeas corpus review is barred, unless Jordan can demonstrate cause for the default and actual prejudice, or that this Court's failure to consider his claims will result in a fundamental miscarriage of justice.
I find that Jordan is unable to make such a showing. Jordan has failed to demonstrate--or even allege--any cause for his failure to timely file a notice of appeal with the Monroe County Clerk's Office and then serve it on the District Attorney as required under New York law. An inmate's pro se status is not sufficient to establish cause. See Udzinski v. Kelly, 734 F. Supp. 76, 83 (E.D.N.Y. 1990). Because Jordan has not established cause for the default, I decline to consider if there was any prejudice resulting from the alleged violations of federal law. Further, Jordan has not demonstrated--or even alleged--that he is innocent of the crimes to which he pleaded guilty. Therefore, this Court's failure to consider his claims will not result in a fundamental miscarriage of justice. Accordingly, Jordan's claims are barred from habeas corpus review.
For the foregoing reasons, Jordan's petition for a writ of habeas corpus is dismissed. Further, because Jordan has failed to make a substantial showing of a denial of a constitutional right, I deny a certificate of appealability. 28 U. S. C. § 2253.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
July 8, 1997.