Salazar v. Superintendent
Filing
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OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus, DISMISSING case and DENYING Certificate of Appealability, ***Civil Case Terminated. Signed by Chief Judge Philip P Simon on 8/3/15. (cc: Salazar)(mlc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
VICTOR SALAZAR,
Petitioner,
v.
SUPERINTENDENT,
Respondent.
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CAUSE NO. 3:13-cv-00774-PPS
OPINION AND ORDER
Victor Salazar, a pro se prisoner, filed this habeas corpus case challenging his
guilty plea on two drug charges and the resulting aggregate 30-year sentence imposed
on February 13, 2003, by the Tippecanoe Circuit Court. Salazar raises four grounds in
his petition, but the Respondent argues that none of Grounds One, Three, and Four is a
basis for habeas corpus relief. The Respondent further argues that Ground Two was
procedurally defaulted because it was not presented to the Indiana Supreme Court.
I begin my analysis with Ground Two, where Salazar argues that he was denied
the effective assistance of both Trial and Appellate Counsel. “Inherent in the habeas
petitioner’s obligation to exhaust his state court remedies before seeking relief in habeas
corpus, see 28 U.S.C. § 2254(b)(1)(A), is the duty to fairly present his federal claims to the
state courts.” Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). Here, Salazar argues
that he presented his ineffective assistance of counsel claims to the post-conviction court
in both his original and amended petitions. However, that is insufficient, because “[f]air
presentment . . . requires the petitioner to assert his federal claim through one complete
round of state-court review, either on direct appeal of his conviction or in
post-conviction proceedings. This means that the petitioner must raise the issue at each
and every level in the state court system, including levels at which review is
discretionary rather than mandatory.” Id. at 1025-26 (citation omitted). Salazar argues
that in his Petition for Transfer to the Indiana Supreme Court, he “presented inherently
the same Sixth Amendment claim also citing Strickland.” DE 19 at 79-80. Though Salazar
did cite Strickland in his Petition to Transfer, “[a]dequate presentation of a claim to the
state courts requires the petitioner to present both the operative facts and the legal
principles that control each claim.” Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009)
(citation omitted). Salazar did not do that.
In his Petition to Transfer, he raised five claims,1 but he did not request that the
Indiana Supreme Court make any decision about whether the post-conviction court
erred when it found that he had not been denied the effective assistance of either trial or
appellate counsel. See DE 8-15. More critically, Salazar’s petition does not include the
facts related to his ineffective assistance of counsel claims, nor even list why he believed
The five claims Salazar presented in his Petition to Transfer were:
“[1] Whether the Court of Appeals opinions are contrary to Indiana and Federal law.
[2] Whether the Court of Appeals errored in not addressing Salazar’s appeal
issue that Salazar was denied his Due Process rights to a full and fair hearing on the
merits of his petition for post-conviction relief (‘PCR’).
[3] Whether the Court of Appeals errored when it affirmed the PC Court’s
mooting Salazar’s PCR discovery, subpoenas for witnesses, and continuance motions
(Collectively hereinafter ‘pre-hearing motions’).
[4] Whether the Court of Appeals errored when it affirmed the PC Court’s denial
of Salazar’s PCR withdrawal and Amended PCR petition (Collectively hereinafter ‘posthearing’ motions).
[5] Whether the Court of Appeals errored when it affirmed the PC Court’s denial
of Salazar’s change of Judge motion.”
DE 8-15 at 2-3.
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that his counsel rendered ineffective assistance. Id. Rather, it is entirely focused on
procedural errors which he alleges occurred during his post-conviction proceedings. Id.
That is, Salazar takes issue with the lower court’s handling of his IAC claim, but doesn’t
make the IAC claim itself. Consequently, Salazar did not fairly present his ineffective
assistance of counsel claims to the Indiana Supreme Court. Thus, the claims raised in
Ground Two are procedurally defaulted.
Alternatively, Salazar argues that I may consider the merits of his ineffective
assistance of counsel claims because not doing so would be a fundamental miscarriage
of justice.2 “This Court should excuse Salazar’s default, if any, because the postconviction court thwarted Salazar’s Sixth Amendment claims with the intent to prevent
Salazar from proving that his defense attorney, Mr. O’Brien, conspired with State agents
to violate Salazar’s Constitutional rights by committing multiple felony crimes against
Salazar, in violation of State and federal law, resulting in Salazar receiving ten
additional years added to his sentence as a result of his reactions to State agents’ sexual
abuse and torture.” DE 19 at 82. In sum, he argues that it would be a fundamental
miscarriage of justice to allow the post-conviction court’s procedural errors to prevent
him from proving that his lawyer was ineffective because he was colluding with guards
who were sexually abusing Salazar at the jail.
2
Though Salazar mentions “cause and prejudice” as a method for avoiding procedural default, he
did not provide any argument attempting to demonstrate either cause or prejudice. See DE 19 at 81.
3
Based on a common understanding of the words “fundamental miscarriage of
justice,” it would seem that this would be a viable argument. But those words have a
very specific meaning in the context of habeas corpus. A petitioner may overcome a
procedural default by establishing that the court’s refusal to consider a defaulted claim
would result in a fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536
(2006). However, this is a narrow exception which requires the petitioner to prove that a
“constitutional error has resulted in the conviction of one who is actually innocent of
the crime.” Schlup v. Delo, 513 U.S. 298, 324 (1995). A petitioner who asserts actual
innocence “must demonstrate innocence; the burden is his, not the state’s . . . .” Buie v.
McAdory, 341 F.3d 623, 626-27 (7th Cir. 2003) (emphasis in original). “It is important to
note in this regard that ‘actual innocence’ means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citation omitted). That is
to say, procedural or due process errors are insufficient. Even demonstrating that he
had ineffective counsel would not be adequate to overcome procedural default. Rather,
the only way to demonstrate a fundamental miscarriage of justice is to provide actual
proof that he did not commit the two drug crimes to which he pleaded guilty. Here,
Salazar has not even attempted to do that. Because the claims raised in Ground Two are
procedurally defaulted, the law does not permit them to be a basis for habeas corpus
relief. See 28 U.S.C. § 2254(b)(1)(A).
Neither can I grant habeas corpus relief on Grounds One, Three, or Four. In
Ground One, Salazar argues that during his post-conviction proceedings, the State court
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denied him a continuance, discovery, and a fair evidentiary hearing. In Ground Three,
he argues that during his post-conviction proceedings, the State court denied his
request to withdraw and amend his post-conviction relief petition and to set an
evidentiary hearing. In Ground Four, he argues that during his post-conviction
proceedings, he was denied an impartial judge. If any of these procedural errors had
prevented Salazar from exhausting his ineffective assistance of counsel claims, they
might have been relevant to demonstrate cause to excuse procedural default. That is
because “cause” sufficient to excuse procedural default is defined as “some objective
factor external to the defense” that prevented a petitioner from pursuing his
constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 488 (1986). There isn’t
such a factor here. None of the procedural errors that Salazar alleges prevented him
from arguing to the Indiana Supreme Court that the post-conviction court erred when it
found that he was not denied the effective assistance of counsel. Even if these alleged
errors committed by the State post-conviction court prevented him from proving that
his lawyer was ineffective, it did nothing to limit the arguments he included in his
Petition to Transfer. Therefore these grounds are not cause for excusing the procedural
default of his ineffective assistance of counsel claims.
Neither are they an independent basis for habeas corpus relief. That is because in
habeas corpus review, I am “limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68
(1991) (emphasis added). None of these alleged errors during Salazar’s post-conviction
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proceedings undermine the validity of his original conviction. “Unless state collateral
review violates some independent constitutional right, such as the Equal Protection
Clause, see, for example, Lane v. Brown, 372 U.S. 477, 484-85 (1963); Smith v. Bennett, 365
U.S. 708 (1961), errors in state collateral review cannot form the basis for federal habeas
corpus relief.” Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996) (parallel citations
omitted). Here, the procedural errors alleged by Salazar are unlike the Equal Protection
issues raised in Lane and Smith where indigent inmates were unable to attack their
convictions because they could not afford to pay the required fees while non-indigent
inmates could do so.3 Therefore Grounds One, Three, and Four are not a basis for
habeas corpus relief.
Finally, pursuant to Rule 11 of the Rules Governing Section 2254 Cases, I must
decide whether to grant a certificate of appealability. To obtain a certificate of
appealability under 28 U.S.C. § 2253(c), the petitioner must make “a substantial
showing of the denial of a constitutional right” by establishing “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been
3
While it might be possible to image that a claim of judicial bias (Ground Four) could raise
independent constitutional concerns, Salazar’s bias argument is premised solely on the post-conviction
judge’s rulings which Salazar separately raises in Grounds One and Three. “[J]udicial rulings alone
almost never constitute a valid basis for a bias or partiality motion [because] opinions formed by the
judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of
prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States,
510 U.S. 540, 555 (1994). Here, Salazar’s allegations that he was denied discovery (which the Court of
Appeals of Indiana concluded was not relevant) do not raise such concerns. See Salazar v. State, 972 N.E.2d
985, at *5 (Ind. Ct. App. 2012) (table), 2012 Ind. App. Unpub. LEXIS 1019, at *13 (Ind. Ct. App. 2012)
(“[T]he post-conviction court properly denied Salazar’s requests because they were irrelevant to his claim
for post-conviction relief. No discovery was necessary.”). Neither do the other judicial rulings (for which
Salazar’s objections were similarly dismissed by the Court of Appeals of Indiana) demonstrate that the
post-conviction judge harbored any deep-seated antagonism toward Salazar. Id.
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resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, for
the reasons explained in this opinion, Salazar has not made such a showing and will be
denied a certificate of appealability.
For these reasons, the habeas corpus petition is DENIED, this case is
DISMISSED, and Victor Salazar is DENIED a certificate of appealability.
SO ORDERED.
ENTERED: August 3, 2015
/s/ Philip P. Simon
Chief Judge
United States District Court
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