Opinion
4:99-CV-3301
August 31, 2000
MEMORANDUM AND ORDER ON OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This matter comes before me on the petitioner's objections to the Report and Recommendation of Magistrate Judge Jaudzemis, filing 11. After reviewing the petitioner's amended habeas petition, the magistrate judge concluded that all of the claims were either moot or lacked merit and that the petition should therefore be denied. The petitioner then objected to the recommended dismissal of his fourth and fifth claims for relief. For the reasons discussed below, I agree with the magistrate judge's report and recommendation in part, and I find that (1) the petitioner's fourth claim for relief must be dismissed without prejudice for failure to exhaust state remedies, and (2) the petitioner's fifth claim for relief must be dismissed with prejudice.
1. Procedural Background
On May 13, 1993, the petitioner, Ramiro Martin, stood trial for the October 31, 1990, murder of Francisco Javier Ponce Ledezma. State v. Martin, 524 N.W.2d 58, 59 (Neb. 1994) [hereinafter Martin I]. The petitioner represented himself in defending the first degree murder charge, and stand-by counsel was appointed. Petition for Writ of Habeas Corpus [hereinafter Petition], filing 1 at 2, ¶ A. The court also appointed an interpreter, as the petitioner lacked the ability to communicate in English. Id. During the course of the trial, however, the petitioner raised a potential conflict of interest issue with this interpreter, who had interpreted a statement the petitioner had previously given to police. Id. Based on this conflict, the trial court declared a mistrial. Id.
The court then appointed new counsel and a new interpreter to assist the petitioner. Id. On October 27, 1993, the petitioner entered a plea of no contest to a charge of second degree murder. Martin I, 524 N.W.2d at 59. The petitioner moved to withdraw this plea on December 23, 1993, but the trial court denied his motion. Id. The trial court then sentenced the petitioner to an indeterminate term of not less than forty years and no more than life in prison. Id. at 60. The petitioner appealed, claiming that the trial court erred in imposing an indeterminate sentence. Id.
On appeal, the Nebraska Supreme Court vacated the petitioner's conviction and sentence. Id. at 61. The court first held that according to the law in effect at the time the crime was committed, the trial court lacked the authority to impose an indeterminate sentence for second degree murder. Id. at 60. The court then found plain error in the State's failure to include the element of malice in the information upon which the petitioner was arraigned and sentenced. Id. at 61. The petitioner's conviction and sentence were therefore vacated and his case remanded for further proceedings. Id.
On March 16, 1995, the petitioner, with the assistance of counsel Harry A. Moore, again pleaded no contest to an amended information charging him with second degree murder. Petition, filing 1 at 3, ¶ G. The trial court then sentenced the petitioner to a term of thirty years. Id. The petitioner alleges that his counsel failed to file a direct appeal. Id.
On January 17, 1997, by and through counsel, the petitioner filed a motion for post conviction relief. State v. Martin, Memorandum Opinion and Judgment on Appeal, No. S-97-812 at 3 (Neb. Nov. 18, 1998) [hereinafter Martin II], filing 8-Exhibit E. In this motion, the petitioner alleged the following: (1) he did not voluntarily, knowingly, and intelligently request or consent to the 1993 mistrial; (2) he did not voluntarily, knowingly, and intelligently waive his right to a speedy trial; and (3) he did not voluntarily, knowingly, and intelligently enter a no contest plea to the second degree murder charge, and he was not represented by competent counsel when he entered his plea and when he was sentenced. Id.
The State moved to take the petitioner's deposition for use at the post conviction evidentiary hearing. Id. The district court granted this motion, specifically stating that the deposition was "to be used for trial purposes in lieu of the personal appearance of the defendant, as provided by statute 29-3001." Id. (citing Neb. Rev. Stat. § 29-3001 (Reissue 1995)). On the date of the scheduled deposition, the petitioner was assisted by counsel and an interpreter. Id. at 4. He was advised through the interpreter that he now had the opportunity to testify regarding his post conviction claims. Id. The petitioner, however, refused to testify, apparently believing that he had the absolute right to be present at the post conviction hearing. Id.
At the July 2, 1997, evidentiary hearing on the petitioner's post conviction claims, the petitioner's counsel objected, arguing that the hearing should not proceed in the absence of his client. Id. The district court overruled this motion and the hearing continued. Id. At the conclusion of the proceedings, the district court dismissed the petitioner's claims with prejudice, concluding that the petitioner had failed to sustain his burden of establishing that he was entitled to post conviction relief. Id. at 5.
On appeal to the Nebraska Supreme Court, the petitioner, with the assistance of counsel, alleged that the district court's order denying post conviction relief was clearly erroneous and that the district court erred in denying the petitioner's request to be present at the post conviction hearing. Id. In dismissing the appeal, the court concluded that each of the petitioner's claims related to his first conviction and sentence in 1993. Id. at 6-7. The court then found that because the petitioner's original conviction and sentence were vacated in Martin 1, the petitioner's claims were moot. Id. at 7. Thus, the court dismissed the post conviction petition, concluding that the petitioner was seeking relief already granted in Martin I. Id. at 8.
2. Habeas Petition
The habeas petition was filed on November 22, 1999, and raised the following five grounds for relief:
the petitioner did not consent to the mistrial and his standby counsel was ineffective in failing to advise him about the mistrial;
the petitioner received ineffective assistance of counsel from Charles Balsiger related to the speedy trial waiver;
the petitioner received ineffective assistance of counsel from William Eustice related to the speedy trial waiver;
the petitioner was not represented by competent counsel when he entered the no contest plea to second degree murder, and he did not enter the plea voluntarily; and
the district court erred in denying him the right to be present at his post conviction hearing and in denying post conviction relief. The petitioner did not take part in a deposition because his counsel advised him that he had a right to be present at the evidentiary hearing.
After reviewing the initial petition, the magistrate judge granted leave to file an amended habeas petition, directing the petitioner to inform the court as to whether his claims were barred by the limitation period of the Anti-Terrorism and Effective Death Penalty Act, codified at 28 U.S.C. § 2244(d)(1). In response, the petitioner attached several documents to his amended petition. Upon reviewing these documents, the magistrate judge concluded that the petition was timely filed. See Report and Recommendation, Martin v. Kenney, 4:99CV3301, (D.Neb. May 8, 2000) [hereinafter Report and Recommendation], filing 11 at 4-5.
The initial petition was also found lacking in that it did not provide sufficient information to enable the court to determine whether the petitioner had exhausted all available state court remedies, as required by the exhaustion doctrine. See 28 U.S.C. § 2254(b). Thus, the magistrate judge also directed the petitioner to identify specifically each assigned error raised before the Nebraska state courts. Upon reviewing the petitioner's amended habeas petition, the magistrate judge then determined that the Nebraska Supreme Court had considered all of the petitioner's claims. The magistrate judge therefore concluded that the petitioner had exhausted his state remedies. See Report and Recommendation, filing 11 at 6.
After determining that the petitioner had timely filed his claims and had exhausted his state remedies, the magistrate judge then addressed the merits of the amended habeas petition. The magistrate judge first found that four of the petitioner's five claims were moot. Id. Citing the Nebraska Supreme Court's decision in Martin II, the magistrate judge determined that the petitioner's first four claims all related to alleged errors that occurred during the petitioner's first conviction and sentence, which was vacated in Martin 1. Id. Thus, the magistrate judge concluded that the petitioner was using post conviction proceedings to seek the vacation of a sentence and conviction that had already been vacated . Id. at 6-7. Because the petitioner sought relief that had previously been granted, the magistrate judge recommended that the petitioner's first four claims be dismissed as moot. Id. at 7.
The magistrate judge found that only one claim was ripe for consideration, the petitioner's assertion that the post conviction court violated his rights in refusing to allow him to be present at the post conviction hearing. Id. In addressing the merits of this claim, the magistrate judge determined that Nebraska law did not guarantee the petitioner the right to be present at the post conviction evidentiary hearing. Id. (citing Neb. Rev. Stat. § 29-3001). Concluding that the district court did not violate the petitioner's constitutional rights by proceeding in his absence, the magistrate judge recommended that the habeas petition be denied because each of the petitioner's claims were either moot or lacked merit. Id.
3. Standard of Review
Pursuant to NELR 72.4, the petitioner has filed an objection to the magistrate judge's report and recommendation. I shall review the magistrate judge's recommendation de novo. 28 U.S.C. § 636(b)(1); NELR 72.4; Jones v. Pillow, 47 F.3d 251, 252 (8th Cir. 1995).
4. Analysis
In his objections to the magistrate judge's report and recommendation, the petitioner concedes that his first three claims are moot, in that he has already received the relief sought (i.e., vacation of his first conviction) by these claims. See Petitioner's Objections To and Appeal From Magistrate's Report and Recommendation [hereinafter Objections], filing 15 at 3. The petitioner therefore focuses his objections on claims four and five of his habeas petition.
Fourth Claim for Relief
In his fourth claim, the petitioner alleges that (1) he was "deprived of effective counsel at his plea and sentencing stage," and (2) "his plea was not knowingly, voluntarily, and intelligently entered in violation of his Sixth and Fourteenth Amendments to the United States Constitution." Petition, filing 1 at 7. According to the petitioner, the magistrate judge mistakenly characterized this claim as relating to the first time he pleaded no contest to the second degree murder charge, on October 27, 1993. Objections, filing 15 at 3. The petitioner, however, asserts that his claim is actually based on the second time he pleaded no contest to second degree murder, on March 16, 1995. Id. at 3-4. Thus, the petitioner argues that is claim is not moot, in that it is based on events that occurred after Martin. Id.
I agree that there appears to be some confusion as to the petitioner's fourth claim for relief. The petitioner pleaded no contest to second degree murder on two occasions: October 27, 1993, and March 16, 1995. In his habeas petition, the petitioner does not specifically identify which plea of no contest forms the basis for his fourth claim. Nevertheless, I am required to construe the petition liberally in the petitioner's favor. See Carlson v. State of Minnesota, 945 F.2d 1026, 1029 (8th Cir. 1991). Thus, in applying this standard, I find that the petitioner's fourth claim challenges the March 15, 1995, plea.
The petitioner next asserts that he has exhausted his state remedies with respect to his fourth claim. Generally, a petitioner "must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion requirement, a petitioner must therefore show that he either "made a fair presentation of his claims to the state courts or that he has no other presently available state remedies to pursue." Gentry v. Lansdown, 175 F.3d 1082, 1083 (8th Cir. 1999) (citations omitted); see also 28 U.S.C. § 2254 (b)-(c) (requiring petitioners to pursue all remedies "available" in the state courts before seeking federal relief); O'Sullivan, 526 U.S. at 845 (finding that "state prisoners must give the state courts one full opportunity to resolve any constitutional issue by invoking one complete round of the State's established appellate review process"); Gray v. Netherland, 518 U.S. 152, 163 (1996) (providing that "`the substance of a federal habeas corpus claim must first be presented to the state courts'" (citing Picard v. Connor, 404 U.S. 270, 278 (1971)). A claim has not been "fairly presented" to the state courts "unless the same factual grounds and legal theories asserted in the prisoner's federal habeas petition have been properly raised in the prisoner's state court proceedings." Forest v. Delo, 52 F.3d 716, 719 (8th Cir. 1995) (citations omitted). Thus, the "fairly presented" requirement is not satisfied "when factual allegations significantly affecting the determination of that claim are raised for the first time in federal court." Stranghoener v. Black, 720 F.2d 1005, 1007 (8th Cir. 1983).
In support of his contention that he has satisfied the requirements of exhaustion with respect to his fourth claim, the petitioner directs my attention to (1) the magistrate judge's report and recommendation, and (2) the Nebraska Supreme Court's opinion in Martin II. According to the petitioner, "[t]he Magistrates [sic] R R Order Pp. 6 at ¶ 1 recognized that this issue [relating to his fourth claim] . . . was properly before the States [sic] high Supreme Court, therefore, properly exhausted and properly presented on his Habeas petition for this court's review." Objections, filing 15 at 5. I disagree. The magistrate judge did find that all of the petitioner's claims were considered by the Nebraska Supreme Court and that the petitioner had therefore exhausted his state remedies. See Report and Recommendation, filing 11 at 6. In reaching this decision, however, the magistrate judge clearly proceeded on the assumption that the errors alleged in the petitioner's fourth claim for relief related to his October 27, 1993, plea. See id. (stating that the petitioner's first four claims concerned his first conviction and sentence, which the Nebraska Supreme Court vacated in Martin I). Thus, contrary to the petitioner's assertion, the magistrate judge did not address the issue of whether the petitioner exhausted his state remedies with respect to his claim that he did not enter the March 16, 1995, plea voluntarily or with effective assistance of counsel.
Likewise, the Nebraska Supreme Court does not appear to have addressed the petitioner's fourth claim as it relates to his March 16, 1995, no contest plea. In its memorandum opinion, the Nebraska Supreme Court first identified the petitioner's post conviction allegations as follows:
(1) [T]he judge's notes of May 13, 1993, inaccurately reflect that Martin requested a mistrial on that date and that even if the court inquired of him as to whether or not he wanted a mistrial, he did not voluntarily, knowingly and intelligently request or consent to the entry of a mistrial by the district court; (2) he did not voluntarily, knowingly, and intelligently waive his right to a speedy trial on January 28, 1993, and again on July 29, 1993; and (3) he did not voluntarily, knowingly, and intelligently enter a no contest plea to the charge of murder in the second degree and that he was not represented by competent counsel at the time he entered his plea and at the time of sentencing.Martin II at 3, filing 8-Exhibit E. The court then noted that "[e]ach of these claims pertain to the case proceedings appealed directly in Martin I." Id. The court also stated that "Martin's post conviction claims . . . concern events that occurred in 1993, including the trial court's granting of a mistrial, Martin's waiver of his speedy trial rights and Martin's entry of and voluntariness of his no contest plea." Id. at 6; see also id. at 7 (stating that "Martin's post conviction petition filed in Martin II does not allege any error in the proceedings in Martin II, much less constitutional error"). Thus, it is clear to me that the Nebraska Supreme Court did not address the petitioner's fourth claim for relief as it relates to his March 16, 1995, plea.
The petitioner, however, is apparently arguing that although the Nebraska Supreme Court did not address his fourth claim as it related to his 1995 plea, he did "fairly present" the issue for review. See Objections, filing 15 at 4 (stating that "[w]herefore Petitioner should have been given the opportunity to address his claim for review due to his claim being both exhausted and unadressed [sic] by the lower state Courts"); see also Amended Petition Pursuant to Rule 15.1, filing 8 at 5 (alleging that the petitioner's fourth claim for relief "[w]as raised to the States [sic] High Supreme Court Pp 3-8 of the State Supreme Court Opinion and therefore giving the State Courts One full round exhausting his claim"). The petitioner's brief to the Nebraska Supreme Court does reference his fourth ground for relief. See Brief of Defendant-Appellant at 4, Nebraska v. Martin, S-97-812 (Neb. Nov. 18, 1998), filing 8-Exhibit F (stating that "[t]he appellant contended in his [state] Petition for post conviction relief that he would not have voluntarily, knowingly and intelligently entered a plea of no contest to a charge of murder in the second degree, a Class 1 felony"). Nevertheless, his brief fails to clarify the factual basis for this ground, i.e., whether it was based on his 1993 or his 1995 plea. Furthermore, as noted above, the Nebraska Supreme Court clearly concluded that each of the petitioner's post conviction claims related to the petitioner's first conviction, which had been vacated in Martin I. See Martin II at 6-7, filing 8-Exhibit E. It therefore appears to me that the petitioner has not "fairly presented" his fourth claim for relief to the state courts, insofar as this claim is based on his 1995 plea of no contest. Thus, contrary to the petitioner's assertions, the Nebraska Supreme Court has not yet been afforded a fair opportunity to address this fourth claim. See Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 302 (1984) (concluding that the defendant satisfied the exhaustion requirement after presenting his claim to the state's highest court). Accordingly, the petitioner's fourth claim for relief will be dismissed without prejudice for failure to exhaust state remedies.
As noted above, the petitioner may also satisfy the exhaustion requirement by establishing that "he has no other presently available state remedies to pursue." Gentry, 175 F.3d at 1083. This avenue of proving exhaustion implicates the habeas doctrine of procedural default. See Gray, 518 U.S. at 161. The United States Supreme Court has described the relationship between the exhaustion and procedural default requirements as follows:
Title 28 U.S.C. § 2254(b) bars the granting of habeas corpus relief "unless it appears that the applicant has exhausted the remedies available in the courts of the State." Because "[t]his requirement . . . refers only to remedies still available at the time of the federal petition," . . . it is satisfied "if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law." However, the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default.Id. (citations omitted); see also Burns v. Gammon, 173 F.3d 1089, 1091-92 (8th Cir. 1999) (explaining that the "exhaustion doctrine refers to the absence of presently available state remedies"). Thus, in this case, the relevant inquiry under a procedural default analysis is whether the petitioner has any state remedy available to him with respect to his involuntary plea/ineffective assistance of counsel claim.
Under the law of Nebraska, "[p]ostconviction proceedings are not available to secure review of issues which were or could have been litigated on direct appeal." State v. Fletcher, 573 N.W.2d 752, 755 (Neb. 1998) (citations omitted). In certain circumstances, however, an ineffective assistance of counsel claim may be raised for the first time in a post conviction motion, notwithstanding the failure to directly appeal. See State v. Burnett, 579 N.W.2d 513, 516 (Neb. 1998). If, for example, a petitioner alleges that his original attorney was ineffective in filing or failing to file a direct appeal, a post conviction court may properly reach the merits of the ineffective-assistance-of-counsel claim. See id. (providing that "the very nature of [the petitioner's] ineffectiveness claim requires this court to inquire into the sentencing issues raised by [the petitioner], because his attorney's effectiveness depends upon the merits of those issues").
Nebraska law also recognizes that "post conviction proceedings are not a tool whereby a defendant can continue to bring successive motions for relief." State v. Ryan, 601 N.W.2d 473, 484 (Neb. 1999) (citations omitted). A petitioner is entitled to bring a second proceeding for post conviction relief only "if the grounds relied upon did not exist at the time the first motion was filed." Id. Accordingly, the Nebraska Supreme Court has held as follows:
Once a motion for post conviction relief has been judicially determined, any subsequent motion for such relief from the same conviction and sentence may be dismissed unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the prior motion was filed.Id. (emphasis supplied) (citation omitted). Such procedural rules are deemed necessary to promote judicial economy and finality of litigation. State v. Otey, 464 N.W.2d 352, 360 (Neb. 1991); see also Ryan, 601 N.W.2d at 484 (recognizing that the need for finality in the criminal process requires a petitioner "[to] bring all claims for relief at the first opportunity").
Given the apparent confusion in this case regarding the basis for the petitioner's fourth allegation, I am not prepared to say that Nebraska law conclusively bars his fourth ground for relief. Granted, the petitioner's claim based on his 1995 plea did exist at the time he filed his first motion for post conviction relief. See Ryan, 601 N.W.2d at 484 (permitting successive motions for post conviction relief only when "the grounds relied upon did not exist at the time the first motion was filed"). The Nebraska Supreme Court, however, construed the petitioner's first motion as a challenge to his 1993 conviction only. Thus, a question remains as to whether a second motion for post conviction relief challenging the petitioner's 1995 conviction on ineffective assistance of counsel/involuntary waiver grounds would be characterized as "successive" by Nebraska courts. See id. (referring to relief from "the same conviction"). If this second motion is not characterized as successive, it appears to me that Nebraska law would permit the petitioner's claim. See Burnett, 579 N.W.2d at 516 (recognizing that ineffective assistance of counsel claims may, in certain circumstances, be raised for the first time in post conviction proceedings). Accordingly, I cannot find at this time that the petitioner has satisfied the exhaustion requirement in that "he has no other presently available state remedies to pursue." See Gentry, 175 F.3d at 1083.
Fifth Claim for Relief
In his fifth claim for relief, the petitioner alleges that the district court erred in denying him the right to be present at his post conviction hearing. The petitioner also alleges that his refusal to participate in a deposition was based on the advice of his counsel. According to the petitioner, his attorney informed him that he had the absolute right to be present at the post conviction evidentiary hearing.In reviewing the petitioner's fifth claim for relief, the magistrate judge first determined that the petitioner had exhausted his state remedies. Report and Recommendation, filing 11 at 6. The magistrate judge then recommended that the petitioner's fifth claim be dismissed because it lacked merit. Id. at 7. In reaching this conclusion, the magistrate judge referred to Neb. Rev. Stat. § 29-3001, which provides, in relevant part, that a court "may entertain and determine such [post conviction] motion without requiring the production of the prisoner, whether or not a hearing is held." See id. Because it was not necessary for the petitioner to be present at the hearing, the magistrate judge found that the petitioner's rights were not violated by the district court's refusal to require his presence. See id.
In objecting to the magistrate judge's report and recommendation, the petitioner has apparently abandoned his position that he was entitled to be present at the post conviction hearing. Instead, his objection focuses on the alleged advice his counsel gave him with respect to the deposition. According to the petitioner, "[t]he question still remains whether or not petitioner had a full understanding of the proceedings, and whether or not without properly being informed did the petitioner knowingly, willingly, and voluntarily waive any depositions due to counsel's erroneous advice." Objections, filing 15 at 6. Thus, the petitioner now apparently characterizes his fifth ground for relief as solely an ineffective-assistance-of-counsel claim.
While the petitioner may have exhausted his state remedies with respect to his allegation that he was entitled to be present at the post conviction hearing, the petitioner's ineffective- assistance-of-counsel claim made its first appearance in his federal habeas petition. The petitioner was apparently represented by the same counsel in filing and appealing his state motion for post conviction relief. See Petition, filing 1 at 3-4, ¶¶ H, J. Thus, the petitioner's brief to the Nebraska Supreme Court in Martin II did not raise the ineffective-assistance-of-counsel claim and the Nebraska courts have not yet had a fair opportunity to address this issue.
Despite the petitioner's failure to exhaust his state remedies as to his ineffective assistance claim, I find that the claim must be dismissed with prejudice because it lacks merit. See 28 U.S.C. § 2254(b)(2) (permitting denial on merits of habeas petition without requiring applicant to exhaust state court remedies); Padavich v. Thalacker, 162 F.3d 521, 522 (8th Cir. 1998) (providing that "the `exhaustion rule is not a rule of jurisdiction, and sometimes "the interests of comity and federalism [are] better served by addressing the merits."'"(citations omitted)). Section 2254(i) provides that "[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." 28 U.S.C. § 2254(i) (emphasis supplied); see also Coleman v. Thompson, 501 U.S. 722, 7 (1991) (concluding that because there is no constitutional right to attorney in state post conviction proceeding, habeas petitioner could not claim constitutionally ineffective assistance of counsel in such proceedings); State v. Stewart, 496 N.W.2d 524, 529 (Neb. 1993) (holding that "a prisoner has no claim of ineffective assistance of counsel in a post conviction proceeding"). Thus, to the extent the petitioner now argues that his fifth ground for relief is based on his post conviction counsel's ineffective assistance, his claim must be dismissed.
IT IS ORDERED THAT:
1. the petitioner's first three claims for relief are dismissed with prejudice as moot;
2. the petitioner's fourth claim for relief is dismissed without prejudice for failure to exhaust state remedies, insofar as this claim is based on his March 16, 1995, plea; and
3. the petitioner's fifth claim for relief is dismissed with prejudice.