Opinion
4:99CV3209
June 6, 2000
MEMORANDUM AND ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The petitioner, Joush Hatcher, Jr., was convicted in a Nebraska state court on April 14, 1978, of first degree murder. He was sentenced to life in prison. The petitioner filed no direct appeal, but according to the amended petition, two motions for postconviction relief were filed. The first motion was filed in Douglas County District Court on July 15, 1986, alleging that the petitioner was entitled to relief due to ineffective assistance of counsel and "failure of the proof." The motion was denied and was later dismissed on appeal to the Nebraska Supreme Court, allegedly because the petitioner failed to file an appellate brief. The second motion was filed in June of 1997 and alleged the same two grounds for relief. The motion was denied on July 22, 1997, and the denial was affirmed by the Nebraska Supreme Court on the grounds that petitioner was procedurally barred by his failure to file the appellate brief on the first motion. Mr. Hatcher filed a petition for a writ of habeas corpus in 1997. Hatcher v. Hopkins, 4:97CV3324. The petition was denied on the grounds that all available state remedies had not yet been exhausted. Then, on July 14, 1999, the petitioner filed the instant petition for federal habeas relief pursuant to 28 U.S.C. § 2254, filing 1. Subsequently, an amended petition was filed on October 5, 1999, filing 9.
On December 14, 1999, Magistrate Judge Kathleen A. Jaudzemis filed a Report and Recommendation, filing 10, in which she analyzed the petitioner's request for relief and recommended that I dismiss it on the grounds that the petitioner has not demonstrated sufficient cause for his procedural default in state court. The petitioner has filed an objection to the magistrate judge's report and Recommendation, filing 11. I ordered that counsel be appointed to represent the petitioner, filing 12, and the appointed counsel has submitted a memorandum for my consideration. I have reviewed the magistrate judge's Report and Recommendation, the petitioner's objection, and counsel's memorandum, and I have conducted a thorough review of Mr. Hatcher's petitions, brief, and the governing law. After reviewing the law and the relevant documents, I find that the magistrate judge's Report and Recommendation is wholly correct. In addition, I shall take a moment to expressly address two concerns raised in the petitioner's brief accompanying his objection to the recommendation.
First, the petitioner relies upon Wilkins v. Bowersox, 933 F. Supp. 1496 (W.D.Mo. 1996) and Smith v. Wolff, 506 F.2d 556 (8th Cir. 1974) to support his argument that his procedural default in the Nebraska courts should not bar federal relief. However, I find the quoted passage from Wilkins to be a dated and erroneous statement of the law. See Wilkins at 1519 (citing Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972) for the proposition that pro se petitioners are not barred from federal relief absent a knowing and intelligent waiver of rights). In addition to the fact thatCooper has nothing to do with the proposition that it is cited for in Wilkins, Coleman v. Thompson, 501 U.S. 722, 750 (1991) makes explicit that the "cause and prejudice" standard discussed by the magistrate judge, rather than the "knowing and intentional waiver" standard argued in Wilkins, applies in cases in which a state prisoner has defaulted his federal claims in state court pursuant to a state procedural rule. Smith is similarly inapplicable to this case as it reflects the pre-Coleman state of the law.
I agree with the magistrate judge that the petitioner is incapable of showing cause for his earlier procedural default. To show cause, the petitioner must demonstrate that something external to the petitioner, such as interference by officials or newly available law or facts, impeded his efforts to comply with the state's procedural rule. Coleman at 753. The petitioner has alleged that he was unable to respond to the Nebraska Supreme Court's request for an appellate brief because of the unavailability of his regular jailhouse lawyers, and because he simply did not know what to do with the Nebraska Supreme Court's request when he received it due to his illiteracy. See Original Petition at IV(A)(8)(c). This is not enough to establish cause for his procedural default in this case. His failure to respond was completely within his control, whether or not he needed to secure assistance from other individuals. Also, the petitioner was not entitled to counsel as a matter of right in his Nebraska postconviction proceedings, nor on his federal habeas petitions.State v. Burnside, 181 Neb. 20, 22, 146 N.W.2d 754, 755 (1966); Neb Rev. Stat. Ann. § 29-3004 (Michie 1995). While ineffective assistance of counsel is recognized as cause for a procedural default in Murray v. Carrier, 478 U.S. 478, 488 (1985), in this case the Sixth Amendment right to counsel does not attach. Thus, neither the state's decision not to appoint counsel for the petitioner nor the unreliability of his jailhouse lawyers help him demonstrate cause for his procedural default on his state postconviction motion. See also McCoy v. Lockhart, 969 F.2d 649, 650 (8th Cir. 1992) (finding that representing oneself pro se at the state habeas level does not constitute cause for procedural defaults).
This brings me to the second concern raised by the petitioner's brief. The petitioner argues that he is innocent of the charges of first degree murder, and therefore the merits of his claims should be reached in order to prevent manifest injustice. In order to demonstrate that manifest injustice would occur if a procedural bar prevented the consideration of the merits of a constitutional claim for relief, the petitioner must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 478 U.S. at 496. To succeed, "the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Schlup v. Delo, 513 U.S. 298, 327 (1995).
The constitutional violation alleged by the petitioner is grounded in his ineffectiveness-of-counsel claim, which he says resulted in his erroneous guilty plea to the first-degree-murder charge. The petitioner now argues that his homicide was not performed with the requisite premeditation, and thus he claims to be completely innocent of the crime for which he was convicted. However, in the course of his argument the petitioner admits facts which at minimum appear to establish guilt for murder of some lesser degree.
Whether or not the petitioner truly presents a claim of "actual innocence" is a nice question which need not be addressed here. The Supreme Court has made clear that to be credible, a claim of actual innocence "requires petitioner to support his allegations of constitutional error with new reliable evidence B whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence B that was not presented at trial."Schlup v. Delo, 513 U.S. at 324. Even assuming that the petitioner's claim can be construed as one of actual innocence, the petitioner has no new evidence to offer. He rests solely on his own account of the events surrounding the homicide, his assertion that he was somehow coerced into pleading guilty, and his bald statement that he did not premeditate the murder to support his ineffectiveness-of-counsel claim. The reliability of an inmate's own statements is certainly not beyond question, to say the least. More than this is required to demonstrate that a fundamental miscarriage of justice has occurred which excuses procedural defaults without cause in state court postconviction proceedings.
In short, the petitioner makes several cogent legal arguments, but provides me with no basis for evaluating whether his legal arguments fit the facts of his case beyond his own unsupported statements. The request for an evidentiary hearing in Schlup was accompanied by sworn statements by eyewitnesses asserting Schlup's actual innocence, including an affidavit that provided factual evidence of Schlup's innocence. Schlup v. Delo, 513 U.S. at 307, 310. In order to evaluate whether the petitioner should be granted an evidentiary hearing on his habeas petition, I am to assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial. Id. at 332. In this case, the rather compelling evidence of guilt consists of the petitioner's own guilty plea to the charge of first degree premeditated murder. The petitioner has come forward with several legal arguments, but no evidence, to justify the granting of an evidentiary hearing to explore his alleged constitutional violations.
IT IS THEREFORE ORDERED that the magistrate judge's Report and Recommendation, filing 10, is adopted, and the petitioner's habeas petition is dismissed. Petitioner's in forma pauperis status is hereby revoked.
JUDGMENT
In accordance with my Memorandum and Order on Magistrate Judge's Report and Recommendation of today,
IT IS ORDERED that judgment be entered for the respondent.