Rodriguez v. Maynard

• Decision Date: 06 November 1991
• Docket Number: No. 91-6175,91-6175
• Parties: Demetrio Ortiz RODRIGUEZ, Petitioner-Appellant, v. Gary MAYNARD, Director; Attorney General, State of Oklahoma, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 684

948 F.2d 684

Demetrio Ortiz RODRIGUEZ, Petitioner-Appellant, v. Gary MAYNARD, Director; Attorney General, State of Oklahoma, Defendants-Appellees.

No. 91-6175.

United States Court of Appeals Tenth Circuit.

Nov. 6, 1991.

Demetrio Ortiz Rodriguez, pro se.

Susan Brimer Loving, Atty. Gen., and Diane L. Slayton, Asst. Atty. Gen., for the defendants-appellees.

Before ANDERSON, TACHA and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

Petitioner-appellant Demetrio Ortiz Rodriguez appeals from the district court's denial of his petition for writ of habeas corpus. Because we conclude the petition constitutes an abuse of the writ, we exercise jurisdiction under 28 U.S.C. § 1291 and affirm. ¹

In 1977, Mr. Rodriguez pleaded guilty to the offenses of first degree rape and assault and battery with intent to kill. Rodriguez was sentenced to life imprisonment for the rape offense and fifteen years for the assault and battery offense, with the sentences to run consecutively.

Rodriguez, appearing pro se, brought his first petition for a writ of habeas corpus in 1980. In his petition, Rodriguez alleged (1) that his guilty plea was involuntary due to an inability to understand the English language and a failure of his attorney to demand an interpreter; (2) that certain sentencing provisions of the plea agreement were violated; and (3) that the provisions of the double jeopardy clause precluded the state from charging appellant with kidnapping and invalidated his pleas to the rape and assault and battery charges. The district court denied all relief, Rodriguez v. Murphy, No. CIV-80-830-D, (W.D.Okla. Sept. 10, 1980), and we affirmed. Rodriguez v. Murphy, No. 80-2099, (10th Cir. Nov. 19, 1981).

Rodriguez, again proceeding pro se, filed this second petition for a writ of habeas corpus on July 10, 1991. In his petition, Rodriguez alleged (1) that the state court erroneously failed to hold an evidentiary hearing on factual issues that were outside the record; (2) that the state court erroneously denied Rodriguez' challenge to the voluntariness of his guilty plea even though the guilty plea transcript does not reflect that Rodriguez was informed of his rights to confront and cross-examine witnesses; (3) that the state trial judge failed to make a determination of Rodriguez' competency prior to accepting the guilty plea in violation of Rodriguez' Fourteenth Amendment rights; and (4) the state trial judge also failed to determine that there was a factual basis to support Rodriguez' guilty plea in violation of Rodriguez' Fourteenth Amendment rights.

The respondent, Gary Maynard, moved to dismiss Rodriguez' petition as an abuse of the writ of habeas corpus, under Rule 9, Rules Governing Section 2254 Cases, 28 U.S.C. § 2254. Respondent argued that all four of Rodriguez' present claims are new claims that were not presented in Rodriguez' first federal habeas petition. The district court ordered Rodriguez to file a response to Respondent's motion to dismiss. The district court specifically requested Rodriguez to explain why his petition deserves reconsideration and to explain why the new grounds he asserts in the present petition were not raised in the earlier petition. In his response, Rodriguez asserted that he "has no legal training and the Plaintiff did not and still does not have the legal knowledge of legal procedures." In addition, Rodriguez argued that his inability to understand the English language prevented him from being aware of all the issues.

The district court applied the following standard to evaluate whether Rodriguez had abused the writ: whether the "new and different ground was withheld from the prior petition due to deliberateness or inexcusable neglect." Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). In addition, the district court determined that the abuse of the writ by a pro se petitioner such as Rodriguez should be judged by the petitioner's actual knowledge of the facts and legal claims. Passman v. Blackburn, 797 F.2d 1335, 1343 (5th Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1609, 94 L.Ed.2d 794 (1987). Although the district court found that all of Rodriguez' claims were indeed new claims, not presented in the earlier petition, the court concluded there was no abuse of the writ. The court held that it could not, "under the legal standards cited above, find that the Petitioner has deliberately withheld his claim from his prior proceeding." The district court then rejected all four of Rodriguez' claims on the merits.

The district court's ruling on the merits may not come before this court if it is premised on claims that constitute an abuse of the writ. McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). Therefore, we must consider the preliminary question of whether Rodriguez' presentation of these claims for the first time in his second federal habeas petition is an abuse of the writ. See id.

A federal court may dismiss a petition for a writ of habeas corpus as an abuse of the writ under 28 U.S.C. § 2244(b) ² and 28 U.S.C. § 2254, Rule 9(b). ³ In McCleskey v. Zant, the Supreme Court recently stated that "[a]buse of the writ is not confined to instances of deliberate abandonment," but also encompasses the "principle of inexcusable neglect." 111 S.Ct. at 1467-68. There, the Court held that the cause and prejudice test--the standard adopted in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), to determine whether to excuse state procedural defaults--also applies "to determine if there has been an abuse of the writ through inexcusable neglect." McCleskey, 111 S.Ct. at 1470.

"[T]he government bears the burden of pleading abuse of the writ." Id. The government did so in this case in its motion to dismiss petitioner's second federal habeas petition. Thereafter, to show he or she has not abused the writ through inexcusable neglect, the petitioner who presents new claims in a second or subsequent federal habeas petition must show both cause for failing to present those claims in an earlier habeas petition and prejudice therefrom. Id. Even if the "petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim." Id.

McCleskey draws no distinction between pro se petitioners and those represented by counsel for the purposes of determining whether a petitioner can show "cause" for failing to present new claims in an earlier habeas petition. In McCleskey, the Court stated that application of the cause and prejudice test in the abuse of the writ context does not imply that petitioners have a constitutional right to counsel in federal habeas corpus. Id. at 1471 (citing Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987)). We hold that, in abuse of the writ cases, the cause and prejudice standard applies to pro se petitioners just as it applies to petitioners represented by counsel. When a pro se petitioner presents a new claim in a second or subsequent federal habeas petition, the petitioner must show cause and prejudice, as those terms have been defined in procedural default cases. See id.

Although an evidentiary hearing is sometimes necessary to give a petitioner the opportunity to make the cause and prejudice showing, such a hearing is not required if it is found as a matter of law that the petitioner cannot satisfy the standard. We find that an evidentiary hearing is unnecessary in this case because, looking solely at the record, we hold as a matter of law that the petitioner cannot meet his burden of showing cause for failure to raise these claims in his earlier petition. ⁴

We have noted that "cause requires a showing of some external impediment" that prevents the petitioner or counsel from constructing or raising the claim. Andrews v. Deland, 943 F.2d 1162 (10th Cir.1991) (citing Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2647, 91 L.Ed.2d 397 (1986), and Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). In order to satisfy the cause standard in procedural default cases, "the petitioner must show that 'some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court." McCleskey, 111 S.Ct. at 1470 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)).

Rodriguez claims that, at the time he filed his first federal habeas petition, he did not realize the legal significance of the errors he alleges the state trial judge committed during the entry of the guilty plea. However, " 'cause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him...." Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991) (citing Murray, 477 U.S. at 488, 106 S.Ct. at 2646). The factual and legal bases for Rodriguez' new claims existed at the time he filed his first federal habeas petition. As the district court noted, Rodriguez' new claims relate to the same defense he raised in his earlier federal habeas petition--that his guilty plea was invalid. Rodriguez can point to no "objective factor external to the defense" as cause for his failure to raise these claims earlier.

In McCleskey, the Court stated...