Opinion
Civil No. 03-2247(PG).
January 31, 2005
Jorge L. Marin-Robles, Pro se, Ponce, PR, for Plaintiff or Petitioner.
Gloria Robison-Guarch, Department of Justice, San Juan, PR, for Defendant or Respondent.
MAGISTRATE-JUDGE'S REPORT AND RECOMMENDATION
Petitioner, Jorge L. Marín-Robles (hereafter "Marín") seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. This matter was referred to the undersigned on August 11, 2004 ( Docket No. 3). The respondents move to dismiss the petition asserting that Marín failed to exhaust the remedies available to him, and on the basis that there is a presumption of correctness in the findings of fact made by the Puerto Rico Supreme Court on direct appeal ( Docket No. 9). Marín did not file a response to the motion to dismiss.
I. Factual and Procedural Background
Marín was convicted in the Superior Court of Caguas, Puerto Rico on November 13, 1992, and sentenced to 339 years imprisonment for aggravated rape, kidnaping, aggravated theft and weapon charges. Marín appealed the conviction and sentence to the Puerto Rico Supreme Court as evidenced by the Judgment of the Puerto Rico Supreme Court affirming the sentence of the Puerto Rico Superior Court, Caguas Part, dated October 9, 1995. While Marín raised various issues in his direct appeal, the issues raised are different from the grounds he claims for relief in his present § 2254 petition. See Docket No. 16.
Marín has also previously sought relief in this Court pursuant to § 2254. See Civil No. 00-2376(JAG). The petition was dismissed, without prejudice, given petitioner's failure to exhaust state judicial remedies. While evaluating the § 2254petiton, the Court noted that Marín had filed several motions for a new trial pursuant to Rule 192.1, Puerto Rico Rules Crim. P. 34 P.R. Laws Ann. App. II, all of which had been denied. The motions were filed on November 17, 1995 (apparently the original Rule 192.1 motion), October 5, 1998, May 13, 1999, April 4, 2000, and June 20, 2001. Id. at Docket No. 26. According to the Court's Report and Recommendation, only the denial of the June 20, 2001 motion was appealed, and the appeal had been denied on June 26, 2001. Id. The Court noted that Marín had also filed numerous motions to reconsider — in 1995, 1998, 1999, and 2000 — all of which were denied, and apparently none of which were appealed. Id. Inasmuch as the Court was unable to examine all of Marín's filings and Marín did not proffer that his motions were appealed or that he exhausted his state judicial remedies, the Court dismissed, without prejudice, the § 2254 petition. Id. at Docket Nos. 27, 28.
Next, Marín appeared before the United States Court of Appeals for the First Circuit and filed a petition for permission to file a successive habeas corpus petition. Marín-Robles v. Rodríguez, No. 02-1550 (1st Cir. 2002). The Appellate Court could not rule definitely on the matter, inasmuch as Marín did not provide the Appellate Court with the Report and Recommendation issued in the District Court. On July 30, 2002, the Appellate Court, ruled that "if petitioner needs permission . . . to file a second or successive 2254 petition, permission is denied because he has not satisfied the high, threshold showing required by 28 U.S.C. 2244(b)(2). Id.
Marín filed his current petition on November 23, 2003. Similar to his first § 2254 petition, Marín did not provide to the court copy of any of his previous filings seeking post-conviction relief to which he alludes to in the § 2254 petition filed in 2000, nor did he even mention the previous § 2254 petition or its dismissal for failure to exhaust.
In the current § 2254 petition Marín raises the following grounds for relief:
2. That the sentence was obtained through the use of evidence obtained during an illegal search of his residence.
3. That the sentence was obtained by means of the use of evidence obtained as a result of an illegal detention.
3. That the sentence was obtained in violation of his right to due process of law because the police exercised pressure on the witness who identified him.
4. That the sentence was obtained in violation of his right to due process of law because of perjured testimony and evidence provided by state agents and witnesses.
The current § 2254 petition refers to three post conviction motions filed by Marín; a Motion under Rule 192.1; a second Motion under Rule 192.1; and a motion to reconsider his sentence. It is unknown when the first-referenced Motion under Rule 192.1 (hereafter "192.1 Motion 2002") was filed. However, the motion was denied by a Resolution of the Puerto Rico Superior Court, Caguas Part, issued on April 10, 2002. It appears that Marín appealed the denial of the 192.1 Motion 2002 to the Puerto Rico Supreme Court as evidenced by the Resolution of the Puerto Rico Supreme Court, dated May 17, 2002, which denied the Appeal under Law 195. Notably, the issues raised in the 192.1 Motion 2002 are different from the issues Marín now raises in this § 2254 Petition. Indeed, Marín describes the issues raised in the 192.1 Motion 2002 as follows: that the sentence is subject to collateral attack because the Court was not fair and impartial; and because Marín's identification by photo was not established or proven beyond a reasonable doubt.
Marín filed a second Motion under Rule 192.1 (hereafter "192.1 Motion 2003"), again on an unknown date, but presumably in 2003. Thereafter, on August 28, 2003, the Puerto Rico Superior Court, Caguas Part, issued its Notification denying the petition. It is in this petition that Marín raised the issues now before the Court in the current § 2254 petition. The lower court denied the motion and stated that it was relying on "its previous rulings," which unfortunately are not delineated. Marín chose not to raise the same issues on appeal, but instead raised the following issues: the lower court erred in rejecting his motion under Rule 192.1, when his sentence was in violation of the constitution and the laws of Puerto Rico and the United States; and, the lower court erred in rejecting his motion under Rule 192.1 without a formal look at the evidence presented and the testimonies provided in violation of the constitution and the laws of Puerto Rico and the United States. Thereafter, the Puerto Rico Supreme Court, issued a Resolution on October 31, 2003, denying the appeal for want of jurisdiction.
Marín's § 2254 petition also contains a copy of a Motion for Reconsideration of Sentence under Rule 185, filed in January 2003. The same reflects that Marín raised the following issue: that the sentence contained errors in the application of the law and that attenuating existing circumstances justify a mitigation of the sentence. On April 7, 2003, the Puerto Rico Superior Court, Caguas Part issued a Notification denying the motion to reconsider the constitutionality of Law 185. Also on May 30, 2003, the Puerto Rico Supreme Court, issued a Resolution rejecting the Appeal.
II. Analysis
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall be entertained when he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. 2254(b)(1).
The respondents argue that Marín has not exhausted his state remedies. The law is clear on the issue that, in order for a prisoner to be entitled to habeas corpus relief under Section 2254, he must have exhausted all of his state remedies. Rose v. Lundy, 455 U.S. 509, 515-18 (1982); Molina-Rosa v. Avila-Rodríguez, 716 F. Supp. 55, 56 n. 1 (D.P.R. 1989). Under Puerto Rico law, a prisoner may seek post-conviction collateral relief pursuant to Puerto Rico Rule of Criminal Procedure 192.1. Rule 192.1 makes it clear that if issues are not included in the original 192.1 petition they are deemed waived, unless the Court finds that they could not have been reasonably filed in the original motion. Rule 192.1, Puerto Rico Rules Crim. P. 34 P.R. Laws Ann. App. II.
"Exhaustion obligations mandate that a habeas petitioner present, or do his best to present, his federal claim to the state's highest tribunal." Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997) (citations omitted). "Thus, a habeas petitioner bears a heavy burden to show that he fairly and recognizably presented to the state courts the factual and legal bases of his federal claim. To carry this burden, the petitioner must demonstrate that he tendered each claim `in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question.'" Id. at 261 (quoting Scarpa v. DuBois, 38 F.3d 1, 6 (1st Cir. 1994)) (internal citations omitted). Indeed, in order to exhaust state law remedies within the meaning of federal exhaustion, a habeas petitioner has to avail himself, not only of whatever appeals he was entitled to as a matter of right, but also as to any discretionary remedies available. See Echevarría-Rodríguez v. Warden, 791 F.Supp. 41, 42 (D.P.R. 1992) (citing Jennsion v. Goldsmith, 940 F.3d 1308 (9th Cir. 1991). Accordingly, a federal court will not entertain an application for habeas relief unless the petitioner first has fully exhausted his state remedy with respect to each and every claim contained in the application. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
Under 28 U.S.C. § 2254(c), a habeas petitioner has failed to exhaust his state remedies only if, with respect to a particular federal claim, "he has the right under the law of the state to raise, by any available procedure, the question presented" (emphasis added). If the federal habeas court finds that the petitioner has forfeited review of the claim in state courts by virtue of some procedural default, then there is no "available" state procedure and the claim, though never actually put before the state court, can be deemed exhausted. See Engle v. Isaac, 456 U.S. 107, 125 n. 28 (1982) (since petitioners could have raised constitutional challenge at trial or on direct appeal, "we agree with the lower courts that state collateral relief is unavailable to respondents and, therefore, that they have exhausted their state remedies with respect to this claim"); Harris v. Reed, 489 U.S. at 268 (1989) (O'Connor, J., concurring); Carsetti v. Maine, 932 F.2d 1007, 1011 (1st Cir. 1991) ("Without an available remedy in state court, petitioner has thus satisfied the exhaustion requirement"). This principle applies to the case at hand.
The Court is troubled by Marín's failure to provide the Court with his original 192.1 motion, that being filed in 1995, and his failure to advise of any subsequent filings through 2001. Even assuming that the filings in 1995, 1998, 1999, 2000 and 2001 never occurred, and that the 192.1 Motion filed in 2002 was the first postconviction filing, Marín has incurred in procedural default, and thus exhausted his state remedies. The motions Marín did provide to the Court evidence that the 192.1 Motion 2002 contained none of the grounds that he now raises in his § 2254 petition. When he finally raised the issues before the Puerto Rico Superior Court in 2003 (said issues now being asserted in the § 2254 petition) the Court denied the motion by relying on its previous rulings. Notably, it did not find that Marín could not have reasonably raised those issues in his previous motions. Accordingly, pursuant to Rule 192.1, the issues raised in the 192.1 Motion 2003 were waived as they were not raised in the 192.1 Motion 2002. Further, when Marín appealed the ruling from the 192.1 Motion 2003 to the Puerto Rico Supreme Court, he did not bring the same issues to the Court's attention, even though he could have done so. More so, the Puerto Rico Supreme Court denied the appeal for want of jurisdiction.
It is highly likely this matter is barred by the applicable one year limitation period, but the undersigned makes no findings regarding same as there are insufficient facts before the Court. See 28 U.S.C. § 2244(d)(1).
The failure to raise said issues in the 192.1 Motion 2002 amounts to procedural default in light of the language found in Puerto Rico Criminal Procedure Rule 192.1. This Rule states that a motion filed under its provision may be filed at any time. However, "[a]ll the grounds which the petitioner may have to seek the remedy provided in this rule shall be included in the motion. Grounds not included shall be considered to have been waived, unless the court, in consideration of a subsequent motion, determines that they could not have been reasonably filed in the original motion." Rule 192.1, Puerto Rico Rules Crim. P. 34 P.R. Laws Ann. App. II (Court's emphasis). There is nothing in the Court file to indicate that the Puerto Rico Courts did not consider the issues raised in 192.1 Motion 2003 waived.
More so, there is nothing in the record to indicate that Marín was prevented from raising the grounds in this current § 2254 petition in his 192.1 Motion 2002. Marín could reasonably have raised the issues and as he did not, the omission of said issues was a procedural default. The claims, therefore, were exhausted.
A finding that Marín has exhausted his claims does not end our inquiry. "To say that the inevitable prospect of a procedural default in state court renders a claim exhausted, however, is not to say that this form of compliance with the exhaustion requirement opens the claim up to federal adjudication on the merits." Perry v. Abdal-Khallaq, No. 92-1072, 1992 WL 119397 (1st Cir. June 4, 1992). To the contrary, a prisoner who would be "procedurally barred from raising a federal constitutional claim in state court is also barred from raising the claim in a federal habeas petition unless he can show cause for and actual prejudice from making the default." Toles v. Jones, 888 F.2d 95, 98-9 (11th Cir. 1989). See also: Teague v. Lane, 489 U.S. 288, 297-99 (1989); Engle v. Isaac, 456 U.S. 107 (1982); Church v. Sullivan, 942 F.2d 1501, 1507 n. 5 (10th Cir. 1991); Wright v. Nix, 928 F.2d 270, 272 (8th Cir. 1991); Thigpen v. Thigpen, 926 F.2d 1003, 1010 n. 17 (11th Cir. 1991); Reese v. Peters, 926 F.2d 668, 671 (7th Cir. 1991); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990).
Indeed, to excuse this procedural default and permit federal habeas review, Marín must show both cause and prejudice. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Marín has failed to make either showing. Indeed, Marín has proffered nothing to establish cause nor has he asserted prejudice nor does he proffer any explanation as to why these claims were not previously raised in either the original 1995 motion or the 192.1 Motion 2002. Quite simply, Marín is not entitled to relief by reason of procedural default. Therefore, it is RECOMMENDED that the § 2254 Petition for Writ of Habeas Corpus be DISMISSED.
III. Conclusion
It is therefore RECOMMENDED that Marín-Robles' Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ( Docket No. 2) be DISMISSED, with prejudice, as it is procedurally defaulted.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(a) of the Local Rules of Court. Any objections to the same must be specific and must be filed with the Clerk of Court within ten (10) days of notice. Rule 72(d), Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to timely file specific objections to the Report and Recommendation waives the right to review by the District Court, and waives the right to appeal the District Court's order. United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). The parties are advised that review of a Magistrate-Judge's Report and Recommendation by a District Judge does not necessarily confer entitlement as of right to a de novo hearing and does not permit consideration of issues not raised before the Magistrate-Judge. Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985 (1st Cir. 1988).
SO RECOMMENDED.