Penaflor v. Thomas
Filing
16
ORDER DENYING 1 PETITION FOR WRIT OF HABEAS CORPUS AND CERTIFICATE OF APPEALABILITY. Signed by JUDGE LESLIE E. KOBAYASHI on May 17, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CRANDALL PENAFLOR, #A0072574, )
)
Petitioner,
)
)
vs.
)
)
TODD THOMAS,
)
)
)
Respondent.
_____________________________ )
CIVIL NO. 12-00050 LEK-BMK
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND
CERTIFICATE OF APPEALABILITY
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND CERTIFICATE OF APPEALABILITY
Before the court is pro se Petitioner Crandall
Penaflor’s petition for writ of habeas corpus under 28 U.S.C.
§ 2254.
Penaflor is a Hawaii prisoner incarcerated at Saguaro
Correctional Center (“SCC”) in Eloy, Arizona.
Respondent has
filed an Answer to the Petition, ECF #13-#14,
and Penaflor has
filed a Traverse.
ECF #15.
For the following reasons, the
Petition and any request for certificate of appealability are
DENIED.
I.
BACKGROUND
On June 25, 1991, a jury in the Circuit Court of the
Second Circuit, State of Hawaii (“circuit court”) found Penaflor
guilty of first degree burglary (Count I), first degree
terroristic threatening (Counts II and III), kidnapping (Count
IV), and two counts of first degree sexual assault (Count VI and
VII).
Resp.’ Decl., Appx. B, ECF #14-2.
The circuit court
sentenced Penaflor to consecutive terms of imprisonment totaling
seventy years, although it denied the State’s motion for extended
terms.
See Appx. C, ECF #14-3.
Penaflor appealed, arguing that
the circuit court abused its discretion when it imposed
consecutive sentences.
The Hawaii Supreme Court affirmed
Penaflor’s conviction by memorandum opinion on August 26, 1992.
Appx. F, ECF #14-6.
Approximately five and a half years later, on
January 22, 1998, Penaflor filed his first state post-conviction
petition pursuant to Rule 40 of the Hawaii Rules of Penal
Procedure (“HRPP”) (“First Rule 40 Petition”).
8.
Appx. H, ECF #14-
Penaflor raised three grounds for relief: (1) ineffective
assistance of counsel; (2) his conviction was obtained through
perjured witness testimony; and (3) biased jury.
Id.
The
circuit court denied the First Rule 40 Petition on May 4, 1998,
finding that Penaflor failed to establish ineffective assistance
of counsel and had waived the second and third claims in his
petition by failing to raise them on direct appeal pursuant to
HRPP 40(a)(3).
Appx. I, ECF #14-9 at 3-6.
Penaflor did not
appeal.
Approximately two years later, on February 28, 2000,
Penaflor moved for correction of his sentence pursuant to HRPP 35
(“Rule 35 Motion”).
Appx. J, ECF #14-10.
Penaflor argued that,
because his conviction for kidnapping showed a continuing course
of conduct, his convictions for burglary, terroristic
2
threatening, and sexual assault were subsumed, or merged, with
his conviction for kidnapping, and therefore illegal.
Id.
The
circuit court denied the motion, finding that each offense was
“separate and distinct.”
Id. Appx. M, ECF #14-13.
appealed and was appointed counsel.
Penaflor
The Hawai`i Intermediate
Court of Appeals (“ICA”) affirmed on October 21, 2002.
ECF #14-15.
Appx. O,
In affirming, the ICA concluded, however, that the
circuit court failed to merge one of Penaflor’s terroristic
threatening charges with his kidnapping charge involving the same
victim (Counts II and IV), pursuant to Hawaii Revised Statutes
(“HRS”) § 701–109(1)(a) and (4)(a) (1993), and reversed
Penaflor’s conviction for terroristic threatening in Count II.
Id. at 2-3.
The Hawai`i Supreme Court denied certiorari.
Three years later, on September 11, 2006, Penaflor
filed his Second Rule 40 Petition.
Appx. R, ECF #14-18.
Penaflor raised three principal grounds for relief, each with
many subparts: (1) ineffective assistance of trial and appellate
counsel, who were the same; (2) prosecutorial misconduct; and (3)
the denial of a fair and impartial trial.1
Id.
The circuit
court denied the Second Rule 40 Petition, finding that Penaflor’s
claims were procedurally barred under HRPP 40(a)(3), because his
(1) ineffective assistance of counsel claims were either raised
1
Penaflor filed an essentially identical amended petition
thereafter, that contained additional exhibits. See Appx. S, ECF
#14-19.
3
and ruled upon, or waived by his failure to raise them in his
First Rule 40 Petition, and (2) his prosecutorial misconduct and
trial court error claims were waived by his failure to raise them
on direct appeal or in his First Rule 40 Petition.
#14-20 at 5-6 ¶¶ 3-4.
Appx. T, ECF
The court noted, however, that “[t]he
State concedes that Petitioner must be resentenced in accordance
with the ICA’s October 21, 2001 Summary Disposition Order.”
at 4 ¶ 14.
Id.
On June 24, 2008, the ICA affirmed, and the Hawai`i
Supreme Court later rejected certiorari.
Appx. V, X, ECF #14-22,
#14-24.
On August 17, 2009, Penaflor filed his first petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this
court.
See Penaflor v. Thomas, 1:09-cv-00378 DAE.
The federal
court, recognizing that the state courts had neither filed an
amended judgment nor resentenced Penaflor since the ICA had
reversed Penaflor’s conviction for terroristic threatening in
Count II in 2002, dismissed the petition without prejudice as
premature.
Id., ECF #13.
On December 21, 2009, the circuit court held a hearing
at which Penaflor, represented by counsel and present by
telephone, requested that his remaining sentences in Counts I,
III, IV, VI, VII, be imposed concurrently.
BB, ECF #14-27, #14-28.
See Decl., Appx. AA,
Instead, the circuit court vacated
Penaflor’s five-year sentence for terroristic threatening in
4
Count II, retained the same consecutive sentences for Penaflor’s
other convictions, and entered an Amended Judgment.
ECF #14-27.
Appx. AA,
On February 25, 2011, the ICA affirmed the circuit
court’s decision.
Appx. BB, ECF #14-28.
In so holding, the ICA
stated that,
the effect of our reversing Penaflor’s conviction on
Count II was simply to remove the Count II conviction
and sentence from Penaflor’s Judgment . . . . Under
these circumstances, the Circuit Court was not required
to resentence Penaflor . . . [but] could have entered
an Amended Judgment that removed the conviction and
sentence on Count II without holding a sentencing
hearing.
Id. at 4-5.
Penaflor, proceeding pro se, sought certiorari,
raising twenty-six issues on appeal, including grounds that were
denied in his First Rule 40 Petition, rejected as procedurally
barred in his Second Rule 40 Petition, and raised for the first
time alleging his consecutive sentences violated Apprendi v. New
Jersey, 530 U.S. 466 (2000), and its progeny.
29 at 5 ¶ x.
Appx. DD, ECF #14-
On June 2, 2011, the Hawai`i Supreme Court rejected
Penaflor’s application for certiorari.
Appx. EE, ECF #14-30.
On January 20, 2012, Penaflor filed the instant
Petition, raising two grounds for relief: (1) the circuit court
violated the United States Constitution, as set forth by the
holdings in Apprendi, et al., and state law, when it resentenced
him to consecutive sentences (Ground One); and (2) ineffective
assistance of trial and appellate counsel (Ground Two).
#2, Mem. in Support.
5
See ECF
Respondent argues that the Petition should be dismissed
because Penaflor’s claims are unexhausted, procedurally
defaulted, and without merit.
II.
A.
See Answer ECF #13.
LEGAL STANDARDS
Exhaustion and Fair Presentation of a Claim
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a federal habeas petitioner must exhaust his
claims in state court before presenting them to the federal
court.
28 U.S.C. § 2254(b)(1)(A); see also Coleman v. Thompson,
501 U.S. 722, 731 (1991); O’Sullivan v. Boerckel, 526 U.S. 838,
842 (1999).
To properly exhaust state remedies, a petitioner
must “fairly present his claim in each appropriate state court
. . . thereby alerting that court to the federal nature of the
claim.”
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (emphasis
added); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995).
A habeas petitioner must give the state courts “one full
opportunity” to decide a federal claim by carrying out “one
complete round” of the state’s appellate process in order to
properly exhaust a claim.
O’Sullivan, 526 U.S. at 845.
Fair presentation of a federal claim requires that
“petitioner describe in the state proceedings both the operative
facts and the federal legal theory on which his claim is based so
that the state courts have a fair opportunity to apply
controlling legal principles to the facts bearing upon his
6
constitutional claim.”
Davis v. Silva, 511 F.3d 1005, 1009 (9th
Cir. 2008) (internal citation omitted).
Exhaustion therefore
requires that a petitioner clearly alert the state court that he
is alleging a specific federal constitutional violation.
See
Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004).
To determine if a claim has been exhausted, the Ninth
Circuit asks whether the petition to the highest appropriate
state court “explicitly alerted the court that petitioner was
making a federal constitutional claim.”2
Galvan v. Alaska Dept.
of Corr., 397 F.3d 1198, 1205 (9th Cir. 2005).
A petitioner may
do so by citing specific provisions of federal law or case law,
Lyons, 232 F.3d at 670, or by citing state cases that plainly
analyze the federal constitutional claim, Peterson v. Lampert,
319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).
B.
Procedural Bar
A claim may be procedurally barred from federal review
if it was actually raised in state court but rejected on state
procedural grounds.
Coleman, 501 U.S. at 729–30.
considered an “express procedural bar.”
This is
See Robinson v. Schriro,
595 F.3d 1086, 1100 (9th Cir. 2010); see also Franklin v.
2
Hawai`i’s petitioners need not present their claims to the
Hawai`i Supreme Court on a petition for certiorari to fully
exhaust their claims. See Haw. R. App. P. 40.3; see also Swoopes
v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (holding that
review by the Arizona Supreme Court is not required to adequately
exhaust in Arizona).
7
Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002).
Federal review
of the merits of the claim is precluded, or procedurally barred,
if the petitioner violated a state procedural rule, the highest
state court to consider the claim actually relied on the
procedural default to deny the claim, and the state procedural
rule is independent of federal law and adequate to warrant
preclusion of federal review.
262 (1989).
See Harris v. Reed, 489 U.S. 255,
A state procedural bar is not adequate unless it was
firmly established and regularly followed at the time of the
purported default.
See Ford v. Georgia, 498 U.S. 411, 423–24
(1991).
A claim also may be procedurally barred from federal
review if the petitioner failed to present it in state court, or
failed to fairly present it as discussed above, and “the court to
which the petitioner would be required to present his claims in
order to meet the exhaustion requirement would now find the
claims procedurally barred.”
Coleman, 501 U.S. at 735 n.1; see
also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (stating
that the district court must consider whether the claim could be
pursued by any presently available state remedy).
considered an “implied procedural bar.”
at 1100.
This is
See Robinson, 595 F.3d
Federal review of such claims is barred if the state
would now apply a mandatory rule of state procedure to preclude
the petitioner from raising the claim in state court.
8
See Moreno
v. Gonzalez, 116 F.3d 409, 411 (9th Cir. 1997).
If the
procedural bar is discretionary, the state will not necessarily
apply the bar, but the claim is unexhausted.
Id.
Because the doctrine of procedural default is based on
comity, not jurisdiction, federal courts retain the power to
consider the merits of procedurally defaulted claims.
Ross, 468 U.S. 1, 9 (1984).
Reed v.
As a general matter, however, this
court does not review the merits of a procedurally defaulted
claim unless a petitioner demonstrates legitimate cause for the
failure to properly exhaust the claim in state court and
prejudice from the alleged constitutional violation, or shows
that a fundamental miscarriage of justice would result if the
claim were not heard on the merits in federal court.
Coleman,
501 U.S. at 750; Robinson, 595 F.3d at 1100, n.10 (stating that
an implied procedural bar must also be adequate and independent,
and is subject to the cause and prejudice, miscarriage of justice
analysis).
C.
Avenues for Exhaustion in Hawaii
In Hawaii, petitioners may exhaust their federal
constitutional claims on direct appeal and through petitions for
post-conviction relief brought pursuant to HRPP 40.
Rule 40
provides that state prisoners are precluded, or procedurally
barred, from obtaining post-conviction relief on issues they have
“knowingly and understandingly” waived by failing to raise before
9
trial, at trial, on appeal, or by any other means, and there are
no “extraordinary circumstances” justifying the failure to raise
the issue.
HRPP 40(a)(3).
The Ninth Circuit has held that Rule 40(a)(3) is
consistently applied and an adequate and independent state
procedural rule sufficient to support procedural default.
Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003); see also
Elizares v. Parker, No. 06-465 HG-LEK, 2007 WL 2048832, at *2-3
(D. Haw. July 12, 2007) (adopting the Magistrate Judge’s finding
that Rule 40(a)(3) is an adequate and independent state
procedural rule sufficient to support a finding of procedural
default), aff’d, App. No. 07-16491, 2009 WL 766506 (9th Cir. Mar.
24, 2009).
III.
DISCUSSION
The court finds that Penaflor’s claims are expressly
and impliedly procedurally barred from federal review, and that
Ground One lacks merit.
A.
Ground One: Illegal Resentencing
Penaflor contends that the circuit court violated his
right to a jury trial under the Sixth Amendment by vacating his
sentence in Count II and reimposing the same consecutive
sentences on his remaining convictions without affording him a
jury trial.
Penaflor cites Apprendi, et al., as support for this
proposition, alleging that the circuit court’s reimposition of
10
consecutive sentences violates federal and state law.
Penaflor raised this Apprendi claim for the first time
in his April 29, 2011, petition for certiorari to the Hawai`i
Supreme Court.
See ECF #14-30 at 5 ¶ x.
Penaflor failed to
raise this claim to the circuit court at the December 21, 2009,
resentencing hearing or to the ICA on appeal of that proceeding.3
Penaflor therefore failed to present this claim in a procedurally
appropriate manner to the Hawaii state courts.
U.S. at 29.
See Baldwin, 541
The Hawai`i Supreme Court declined to address the
claim when it rejected certiorari.
Because the Hawaii courts
have several times expressly rejected Penaflor’s claims as
procedurally barred pursuant to HRPP 40(a)(3), it is clear they
would do so again were he to file a third Rule 40 petition
raising this issue.
Thus, this claim is “technically” exhausted,
but subject to an implied procedural bar.
3
Penaflor claims that he raised the Apprendi issue in his
Second Rule 40 Petition, in 2006. The court has carefully
reviewed Penaflor’s petitions in that action and finds that he
did not fairly raise an Apprendi claim. See ECF #18, #19. He
argued only that the circuit court abused its discretion under
state law when it originally sentenced him to consecutive terms,
which Penaflor mischaracterized as an “extended sentence.” See
Appx. S, ECF #14-19 at 20 ¶ 13. Penaflor further alleged that
the circuit court never “proved that petitioner was a danger to
the public,” referring to the earlier version of HRS § 706–662,
that has since been overruled. See State v. Maugaotega, 115
Hawai`i 432, 446-47, 168 P.3d 562, 576-77 (Haw. 2007). These
claims did not fairly alert the state courts that he was making a
federal claim. Moreover, Penaflor’s Second Rule 40 petition had
concluded before he was resentenced in 2009, and its sentencing
claims cannot apply to his Amended Judgment and reimposition of
consecutive terms.
11
1.
Cause, Prejudice, or Miscarriage of Justice
A procedurally defaulted claim may be excused if a
petitioner shows cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrates
that failure to consider the claim will result in a fundamental
miscarriage of justice resulting in the conviction of an actually
innocent person.
See House v. Bell, 547 U.S. 518, 535-36 (2006);
Schlup v. Delo, 513 U.S. 298, 327 (1995); Lee v. Lampert, 653
F.3d 929, 934-36 (9th Cir. 2011) (holding that the actual
innocence exception applies to claims that are procedurally
barred by expiration of AEDPA’s statute of limitation).
To demonstrate cause, a petitioner must show the
existence of some external factor which impeded his efforts to
comply with the state’s procedural rules.
See Vickers v.
Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Martinez- Villareal
v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996).
To establish
prejudice, the petitioner must show that the alleged
constitutional error worked to his actual and substantial
disadvantage, infecting his entire trial with constitutional
violations.
See Vickers, 144 F.3d at 617.
Establishing
prejudice requires a petitioner to prove that, “but for” the
alleged constitutional violations, there is a reasonable
probability he would not have been convicted of the same crimes.
See Manning v. Foster, 224 F.3d 1129, 1135-36 (9th Cir. 2000).
12
If a petitioner cannot meet one requirement, it is unnecessary
for the court to address the other.
See United States v. Frady,
456 U.S. 152, 168 (1982).
A fundamental miscarriage of justice occurs only when a
constitutional violation has probably resulted in the conviction
of one who is factually innocent.
U.S. 478, 485-86 (1986).
See Murray v. Carrier, 477
A successful claim of actual innocence,
“requires a petitioner to support his allegations . . . with new
reliable evidence” that was not and could not have been presented
at trial to show that “it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a
reasonable doubt.”
Schlup, 513 U.S. at 327; see also, Lee, 653
F.3d at 936.
Penaflor does not explicitly address cause, prejudice,
or actual innocence in his Traverse.
He generally argues that
(1) his claims are not time-barred, and (2) he was precluded from
raising his ineffective assistance of counsel claims on direct
appeal because he was represented by the same attorney at trial
and on direct appeal, suggesting cause for counsel’s failure to
raise “appealable issues,” such as this Apprendi claim.
See
Traverse, ECF #15 at 7-8.
2.
Ground One is Procedurally Barred and Without Merit
Penaflor cannot show prejudice for his failure to raise
his purported Apprendi consecutive sentencing issue because the
13
United States Supreme Court has conclusively held that the
imposition of consecutive sentences is a matter for the
discretion of the sentencing court.
See Oregon v. Ice, 555 U.S.
160, 129 S. Ct. 711, 717–18 (2009).
Because historically the
imposition of concurrent or consecutive sentences was at the
discretion of the trial judge, the Supreme Court held that a
judge may impose consecutive sentences without any jury findings
beyond those of guilt.
Id. at 717–18.
The Supreme Court
therefore held that the rule established in Apprendi, as refined
through such subsequent decisions as Blakely v. Washington, 542
U.S. 296 (2004), and Cunningham v. California, 549 U.S. 270
(2007), does not apply to the imposition of consecutive
sentences.
Ice, 129 S. Ct. at 714–15.
In Ice, the trial judge found that two of the six
crimes of which the defendant was convicted constituted separate
incidents within the meaning of state sentencing law.
As a
result, the trial judge exercised his discretion to impose
consecutive sentences for the two crimes.
Id. at 715–16.
Defendant argued that, under the rationale of Apprendi et al.,
the finding of fact necessary to impose a consecutive sentence
must be made by the jury.
The Supreme Court disagreed and held
that the Sixth Amendment does not prohibit delegating to trial
judges, rather than juries, the finding of facts necessary to
support the imposition of consecutive, rather than concurrent,
14
sentences.
Id. at 716–19.
Therefore, the circuit court was
within its discretion to retain or resentence Penaflor to
consecutive terms on his remaining convictions and there is no
prejudice to him.
The court need not address cause because Penaflor
cannot show prejudice stemming from this claim.
Nor can he show
actual innocence, as this claim relates only to his consecutive
sentences, not to Penaflor’s guilt or innocence.
This claim is
procedurally barred from federal review and without merit and is
DENIED.
B.
Ground Two: Ineffective Assistance of Counsel
In denying Penaflor’s Second Rule 40 Petition, the ICA
held that Penaflor’s ineffective assistance of counsel claims
were explicitly barred from review.
Specifically, the ICA held
that several of Penaflor’s ineffective assistance of trial
counsel claims were previously ruled upon in his First Rule 40
Petition, and his remaining ineffective assistance of counsel
claims, including those against counsel on appeal, were waived by
his failure to raise them in that petition.4
4
See Appx. V, ECF
Penaflor claims that he was precluded from raising claims
of ineffective assistance of counsel because he was represented
at trial and on appeal by the same attorney. See Traverse, ECF
#15 at 7. Penaflor, however, filed his First Rule 40 Petition
pro se five years after his direct appeal concluded and raised
ineffective assistance of counsel as his first claim. See Appx.
H, ECF #14-8 at 7. The circuit court recognized this claim was
properly brought under Rule 40 because trial and appellate
(continued...)
15
#14-22 at 5.
The ICA held that Penaflor failed to prove the
existence of extraordinary circumstances justifying his failure
to raise these claims, and deemed them waived pursuant to HRPP
40(a)(3).
Id.
In summary, the ICA stated, “[a]ll claims raised
by Penaflor in his Second [Rule 40] Petition have either been
waived or previously ruled upon.
As such, he has failed to
present a colorable claim to the circuit court.”
Id.
Penaflor failed to appeal the denial of his ineffective
assistance of trial counsel claims in his First Rule 40 Petition,
and failed to raise his claims of ineffective assistance of
appellate counsel in that petition.
Thus, the ICA held that his
claims were explicitly procedurally barred and they are now
procedurally barred from federal review, absent a showing of
cause and prejudice, or actual innocence.
1.
No Cause, Prejudice, or Actual Innocence Shown
As noted above, Penaflor provides nothing justifying
cause or prejudice.
He neither rebuts Respondent’s argument that
his claims are procedurally defaulted, nor sets forth any
argument that some objective factor external to the defense
impeded his efforts to fairly present all of his ineffective
4
(...continued)
counsel were the same, and addressed the claim on its merits.
Appx. I, ECF #14-9 at 5-7. Penaflor failed to appeal this
decision, but there was no state-created impediment to his
raising all of his alleged trial and appellate counsel
ineffectiveness claims in his First Rule 40 Petition and pursuing
those claims through appeal.
16
assistance of trial or appellate counsel claims in his First Rule
40 Petition.
Nor can he, as the circuit court addressed his
ineffective assistance of counsel claims on their merits in the
First Rule 40 Petition.
See Appx. I at 5-7.
Moreover, Penaflor cannot use his appellate counsel’s
alleged failure to raise the issues he proffers now as cause to
excuse his default, because he never fully-exhausted his claims
of ineffective assistance of appellate counsel in his First Rule
40 Petition.
See Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir.
2008) (holding that ineffective assistance of counsel may
constitute sufficient cause to excuse a default, “only if the
procedural default was a result of an independent constitutional
violation”).
To the extent that Penaflor argues ineffective
assistance of counsel during his Rule 35 proceedings or at
resentencing, and it is not apparent that he raises such a claim,
he provides no support for such a conclusion.5
First, his
resentencing counsel were not ineffective for failing to raise an
Apprendi claim, as that would have been frivolous.
Second, his
resentencing attorneys could not raise the other issues Penaflor
5
Penaflor was represented by James Brumbaugh, Esq, for his
Rule 35 Motion, and by Theodore Y.H. Chinn, Esq., on appeal of
that decision. See Answer, ECF #13 at 4. Penaflor was
represented by the Hawaii Office of the Public Defender at the
2009 resentencing hearing and on appeal in that decision. See
Appx. BB, ECF #14-28 at 4.
17
proffered to the ICA or here, as those claims should have been
raised on direct appeal or in his First Rule 40 Petition.
Third,
Penaflor has never raised a separate and distinct claim of
ineffective assistance of his resentencing counsel to the state
courts, and therefore, this claim is unexhausted.
Penaflor does
not meet his burden by demonstrating cause to excuse the
procedural default of his ineffective assistance of trial or
appellate attorney claims, and the court need not address
prejudice.
See Smith v. Murray, 477 U.S. 528, 533 (1986).
To support the miscarriage of justice prong of the
procedural bar doctrine, a petitioner must show that “a
constitutional violation has probably resulted in the conviction
of one who is actually innocent.”
Schlup, 513 U.S. at 327.
The proffered evidence must create a colorable claim of actual
innocence, that is, that the petitioner is innocent of the charge
for which he is incarcerated, as opposed to legal innocence as a
result of legal error.
Id. at 321.
A successful claim of actual
innocence, “requires a petitioner to support his allegations
. . . with new reliable evidence” that was not available and
could not have been presented at trial to show that “it is more
likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.”
Id. at 327.
Penaflor presents no new evidence establishing that he
is actually innocent of his crimes, or that it is “more likely
18
than not that no reasonable juror viewing the record as a whole
would lack reasonable doubt of his guilt.”
554.
Schlup, 513 U.S. at
Penaflor fails to show cause, prejudice, or actual
innocence as to his claims in Ground Two and it is DENIED as
procedurally barred.
IV. CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Cases,
requires the district court to issue or deny a certificate of
appealability (“COA”), when it enters a final order that is
adverse to a petitioner challenging a state court conviction or
sentence.
See also, 28 U.S.C. § 2253(c)(1).
The standard for issuing a COA is whether the applicant
has “made a substantial showing of the denial of a constitutional
right.”
28 U.S.C. § 2253(c)(2).
When a constitutional claim is
rejected on its merits, “the showing required to satisfy
§ 2253(c) is straightforward: The petitioner must demonstrate
that reasonable jurists would find the . . . court’s assessment
of the constitutional claims debatable or wrong.”
McDaniel, 529 U.S. 473, 484 (2000).
Slack v.
When a habeas petition is
denied on procedural grounds without reaching the underlying
constitutional claims, “a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
19
debatable whether the district court was correct in its
procedural ruling.”
Id.
Ground One is denied as procedurally barred and on its
merits; Ground Two is denied as procedurally barred from federal
review.
Reasonable jurists would not find the denial of Ground
One on its merits is debatable or wrong, or that the denial of
Grounds One and Two as procedurally barred is debatable.
A
certificate of appealability is DENIED.
V.
CONCLUSION
Penaflor’s Petition is without merit as to Ground One
and procedurally barred as to Grounds One and Two and is DENIED.
A certificate of appealability is DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 17, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
Penaflor v. Thomas, Civ. No.12-00050 LEK-BMK; ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND CERTIFICATE OF APPEALABILITY; psas\habeas\Penaflor 12-50 LEK (dny
proc’l dflt)
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?