CARRASCOSA v. HAUCK et al
Filing
39
OPINION. Signed by Judge Susan D. Wigenton on 12/20/13. (gmd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARIA JOSE CARRASCOSA,
Petitioner,
v.
WILLIAM HAUCK, et al.,
Respondents.
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Civil Action No. 12-5173 (SDW)
OPINION
APPEARANCES:
MARIA JOSE CARRASCOSA, Petitioner pro se
#648144/446412E
Edna Mahan Correctional Facility
P.O. Box 4004
Clinton, New Jersey 08809
ANNMARIE COZZI, ESQ.
BERGEN COUNTY PROSECUTOR’S OFFICE
10 Main Street
Hackensack, New Jersey 07601
Counsel for Respondents
WIGENTON, District Judge
Petitioner Marie Jose Carrascosa (“Petitioner” or
“Carrascosa”), a convicted state prisoner presently confined at
the Edna Mahan Correctional Facility in Clinton, New Jersey, has
submitted a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging her December 23, 2009 New Jersey
state court judgment of conviction.
For the reasons stated
herein, the Petition will be dismissed without prejudice as
unexhausted and procedurally barred at this time.
I.
PROCEDURAL AND FACTUAL BACKGROUND
The facts pertaining to Petitioner’s criminal proceeding
are quite involved and have been set forth in significant detail
in prior litigation brought by Petitioner in the District of New
Jersey. 1
See e.g., Carrascosa v. McGuire, Civil No. 07-0355
(DRD), 2007 WL 496459 (D.N.J. Feb. 8, 2007), aff’d, 520 F.3d 249
(3d Cir. 2008).
Simply stated, Carrascosa has been challenging
her detention since November 2006, and now her New Jersey state
criminal conviction in this habeas proceeding, which resulted
from her violations of custody and civil contempt orders issued
by the Superior Court of New Jersey in a contentious divorce and
custody battle.
This Court relies substantially on the February
8, 2007 Opinion issued by the Honorable Dickinson R. Debevoise,
in Carrascosa’s prior habeas action, Civil No. 07-0355 (DRD), as
follows.
1
Petitioner has filed several actions in the District of New
Jersey over the past several years. All of these cases pertain
to Carrascosa’s divorce proceedings and custody dispute that
resulted in her criminal charges at issue. Carrascosa’s many
lawsuits and petitions are listed as follows: Carrascosa v.
McGuire, et al., Civil No. 09-3539 (DRD); Carrascosa, et al. v.
Dr. Shaw-Dr. Ayers, et al., Civil No. 07-5648 (KSH); Carrascosa
v. U.S.A., Civil No. 07-5019 (PGS); Carrascosa v. McGuire, et
al., Civil No. 07-355 (DRD); Carrascosa v. Innes, Civil No. 064648 (SDW); Carrascosa v. Torack, et al., Civil No. 06-3503
(SRC). All of these actions have been dismissed and/or
terminated.
2
Carrascosa, a citizen of Spain, married Peter Innes, a U.S.
citizen, in 1999.
They had a daughter, born in April 2000, who
has dual citizenship in Spain and the United States by virtue of
her parents’ citizenship.
Carrascosa and Innes eventually
separated in early 2004.
On October 8, 2004, Carrascosa and
Innes signed a custody agreement regarding their daughter that,
inter alia, prohibited either parent from traveling outside of
the United States (or a 90-mile radius from Fort Lee, New
Jersey) with their daughter without the written consent of the
other party.
The daughter’s U.S. and Spanish passports were
held in trust by Mitchell A. Liebowitz, Esq.
Carrascosa v.
McGuire, 2007 WL 496459 at *1.
On December 10, 2004, Innes filed for divorce from
Carrascosa in New Jersey.
daughter.
He sought joint custody of their
On December 15, 2004, Carrascosa filed an action in
Spain seeking recognition of the nullification of her marriage
and for custody of their daughter.
On January 12, 2005,
Carrascosa removed her daughter to Spain without the written
consent or knowledge of Innes.
Id.
In the New Jersey state court proceedings, on February 4,
2005, an order was entered requiring the return of the daughter
from Spain and directing that Innes and Carrascosa abide by
their earlier October 8, 2004 custody agreement.
3
Carrascosa
appealed, and on March 14, 2005, the Appellate Division denied
her appeal.
Thereafter, on March 22, 2005, the New Jersey court
granted temporary custody of the child to Innes, and ordered
that the child be returned from Spain within three weeks.
The
order further stated that, if the child was not returned from
Spain, a warrant would issue immediately for the arrest of
Carrascosa.
order.
The child was not returned as directed by the court
Id. at *2.
On June 14, 2005, Innes filed an application in the Spanish
Court seeking the immediate return of his daughter pursuant to
the terms of the Hague Convention’s Civil Aspects of
International Child Abduction and 41 U.S.C. § 11601 et seq., the
International Child Abduction Remedies Act (“ICARA”), and the
New Jersey court order.
In mid-2005, the Spanish Court ordered
that the child was prohibited from leaving Spain for delivery to
the custody of Innes in the United States.
496459 at *2.
Carrascosa, 2007 WL
In light of the Spanish Court’s order, on
November 4, 2005, the Honorable Edward V. Torack, J.S.C., who
replaced the prior judge in the New Jersey divorce and custody
proceedings, vacated all orders relating to custody and
parenting time, child support and the arrest of Carrascosa, but
retained jurisdiction over the property rights and financial
issues in the divorce proceedings.
4
Id. at *3.
However, on November 11, 2005, the Spanish Court reversed
itself due to lack of international jurisdiction, because both
spouses did not have a habitual residence in Spain at the time
the petition was filed in Spanish Court.
On December 9, 2005,
Judge Torack promptly reinstated the action in the Superior
Court of New Jersey and ordered that Carrascosa return the child
from Spain to New Jersey by December 22, 2005, or face
sanctions.
Judge Torack also ordered that the parties submit to
custody evaluations, but Carrascosa failed to report for her
custody evaluation.
August 23, 2006.
A final judgment of divorce was entered on
Id. at **3, 4. 2
The Bergen County Prosecutor’s Office issued an arrest
warrant for Carrascosa based on her violations of Judge Torack’s
contempt and custody orders pertaining to the return of the
child from Spain.
Carrascosa was arrested on November 30, 2006.
On December 19, 2006, a Bergen County Grand Jury returned a
nine count indictment (Indictment No. 06-12-02222-I) against
Petitioner, charging Petitioner with four counts of interference
with the custody of children in violation of N.J.S.A. 2C:134A(1) and (2); four counts of violating a custody and visitation
order, in violation of N.J.S.A. 2C:13-4A(4); and one count of
2
For further detail regarding the custody battle that gave rise
to Petitioner’s criminal charges, this Court also refers to
Innes v. Carrascosa, 391 N.J. Super. 453 (N.J. App. Div. 2007).
5
contempt of a judicial order, in violation of N.J.S.A. 2C:29-9A.
(Ra1, 3 Indictment No. 06-12-02222-I.)
On November 12, 2009, after trial before a jury and the
Honorable Donald R. Venezia, J.S.C., the jury returned a guilty
verdict on all charges.
On December 23, 2009, Judge Venezia
sentenced Petitioner to an aggregate prison term of 14 years.
(Ra2.)
On February 9, 2010, Petitioner filed a notice of appeal
from the judgment of conviction with the Superior Court of New
Jersey, Appellate Division.
filed by Carrascosa.
No conforming brief on appeal was
On November 2, 2011, the Appellate
Division issued an Order dismissing Petitioner’s appeal for
failure to correct noted deficiencies in her appellate brief
within the time period provided.
(Ra3.)
3
On December 7, 2011,
The State provided the relevant state court record with a list
of exhibits, hereinafter denoted as “Ra”, as follows:
Ra1 Indictment No. 06-12-02222-I. (ECF No. 18-1.)
Ra2 December 23, 2009 Judgment of Conviction. (ECF No.
18-2.)
Ra3 November 2, 2011 Appellate Division Order dismissing
appeal. (ECF No. 18-3.)
Ra4 December 7, 2011 Appellate Division Order denying
motion to vacate dismissal and reinstate appeal. (ECF
No. 18-4.)
Ra5 Letter from the Clerk of the Appellate Division to
Petitioner, dated January 12, 2012. (ECF No. 18-5.)
Ra6 Letter from the Clerk of the Appellate Division to
Petitioner, dated March 15, 2012. (ECF No. 18-6.)
Ra7 August 25, 2012 Order, Superior Court of New Jersey,
Law Division, memorializing Petitioner’s decision to
waive counsel on appeal. (ECF No. 18-7.)
6
the Appellate Division denied Carrascosa’s motion to vacate
dismissal and to reinstate her appeal.
(Ra4.)
The Appellate
Division stated that the “appeal will be reinstated upon the
following conditions: (1) the merits brief must be filed no
later than 1/27/12; (2) the brief may be prepared by an attorney
on behalf of appellant or by appellant pro se. ... If the brief
is not filed by 1/27/12, the dismissal will become permanent.”
(Id.)
Petitioner did not comply with the Appellate Division’s
Order as directed.
Instead, Petitioner timely filed this habeas petition under
28 U.S.C. § 2254, on August 13, 2012, with hundreds of pages of
unverified typed and handwritten documents, letters and accounts
to support her petition.
(ECF No. 1.)
On September 4, 2012,
Carrascosa filed a brief and appendix, which were mostly
illegible or duplicative of her prior submissions.
5.)
(ECF Nos. 4,
On September 28, 2012, Petitioner filed a motion to expand
the record, again submitting more of the same, repetitive
documentation and arguments.
(ECF No. 7.)
She also filed a
motion for appointment of counsel and to proceed as an indigent
on October 2, 2012.
(ECF No. 8.)
In an Order issued on April
2, 2013, this Court granted Carrascosa’s application to proceed
in forma pauperis, but denied appointment of counsel without
prejudice.
(ECF No. 23.)
This Court also dismissed
7
Petitioner’s motion to expand the record as moot, finding that
Petitioner’s submission “actually appears to only be an amended
brief in support of her petition, with additional exhibits.”
(Id.)
On January 3, 2013, this Court issued an Order directing
Respondents to file a limited answer addressing issues of
timeliness and exhaustion.
(ECF No. 13.)
The State responded
on February 4, 2013, asserting that the petition should be
dismissed as unexhausted and procedurally defaulted. 4
On
February 14, 2013, Carrascosa filed a motion to strike the
response and for entry of default, (ECF No. 19), which was
denied by Order dated April 2, 2013.
(ECF No. 23.)
On February
15, 2013, Petitioner filed a reply to the State’s answer to the
petition.
(ECF No. 21.)
On April 26, 2013, Carrascosa filed a motion for admission
of evidence, again attaching hundreds of pages of documents,
most of which she previously submitted.
(ECF No. 25.)
On June
25, 2013, July 1, 2013, September 23, 2013, October 7, 2013,
November 12, 2013 and December 6, 2013, Carrascosa again
inundated the Court with repetitive submissions of documentary
“evidence” and rambling, somewhat illegible handwritten letters
4
The State admits that the habeas petition was timely filed.
8
of argument in support of her habeas petition.
(ECF Nos. 30,
31, 32, 33, 34, 35, 36 and 37.)
II.
STATEMENT OF CLAIMS
In her habeas petition, filed on August 13, 2012,
Carrascosa asserts the following grounds for relief:
Ground One:
Ineffective assistance of counsel and “defense
unconscionable with the U.S. Const. Sixth Amend. And N.J. Const.
Art. I par. 10.”
Ground Two:
“Inability to comply, justification,
compliance with N.J.S.A. 2C:13-4d – Actual Innocence.”
Ground Three:
“Falsified Evidence” and “Fraud upon the
State and Federal courts.”
Ground Four:
“Bias, Prejudism [sic], Abuse of Discretion,
Judicial Misconduct;” and “Trial Court Wrongful Rulings.”
Ground Five:
Ground Six:
Prosecutorial Misconduct.
“The prosecution and its main witness and his
police deputy lover/wife tampered with the defense witnesses to
secure they would not testify in Carrascosa’s favor at trial.
On sentencing, Carrascosa informed the trial judge, and on
motion requested a mistrial.”
Ground Seven:
“The undue influence, political interference
with the administration of justice in proceedings did not afford
Carrascosa a due process, and warrants vacation of all
9
proceedings where said political interference was part of
proceedings – in the Chancery Division, the civil habeas corpus
petition 07.CV.0355, and criminal proceedings.”
Ground Eight:
“Petition for habeas corpus from
institutional charges, where Carrascosa was entrapped and
falsely accused, without being afforded, once again a due
process.” 5
(ECF No. 1, Petition at ¶ 12A-D; ECF No. 1-2, Petitioner’s Brief
at 84-114.)
The State argues that the petition should be dismissed as
unexhausted and procedurally defaulted.
III.
(ECF No. 18.)
DISCUSSION
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972).
A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See Campbell v. Burris, 515 F.3d 172, 185-86 (3d Cir. 2008);
Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998).
Thus, because
Petitioner is proceeding as a pro se litigant in this matter,
the Court will accord her habeas petition the liberal
construction intended for pro se petitioners.
5
This allegation appears to be related to a prison disciplinary
action and not Petitioner’s judgment of conviction.
10
A.
Exhaustion Analysis
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254, this Court has jurisdiction to
entertain a petition for federal habeas relief as follows:
[A] district court shall entertain an application for a
writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a).
However, this Court may not grant a petition for a writ of
habeas corpus unless the petitioner “has exhausted the remedies
available in the courts of the State.” 28 U.S.C. §
2254(b)(1)(A).
It is a statutory requirement of every § 2254
petition that federal constitutional claims be raised and
addressed on the merits in state court prior to the filing of a
habeas petition in federal court. 6
See Granberry v. Greer, 481
U.S. 129, 131 (1987); Rose v. Lundy, 455 U.S. 509, 516–18
(1982).
This means that both the legal substance and factual
predicate of each claim presented for federal habeas review must
6
Once the litigant duly raises such claims, these claims are
deemed exhausted even if the state courts denied relief without
expressly addressing those claims. See Harrington v. Richter,
––– U.S. ––––, 131 S.Ct. 770, 178 L.Ed.2d 624 (U.S. Jan. 19,
2011) (a state court may render an adjudication on the merits of
a federal claim by rejecting the claim without any discussion
whatsoever; such determination is nonetheless subject to same
degree of deference for the purposes of the court sitting in
habeas review).
11
be materially the same as those of the corresponding claim
presented to all levels of state court.
See Rolan v. Coleman,
680 F.3d 311, 317 (3d Cir. 2012) (citing Castille v. Peoples,
489 U.S. 346, 351 (1989)).
Further, the petitioner must present
the claim to the state courts in a recognizable way so that the
court is not required to “read beyond a petition” to understand
the claim.
Moore v. DiGuglielmo, 489 F. App’x 618, 622 (3d Cir.
2012) (quoting Baldwin v. Reese, 541 U.S. 27, 32 (2004)).
Finally, “[i]n order for a claim to be exhausted, it must
be fairly presented’ to the state courts by invoking one
complete round of the State’s established appellate review
process.’”
Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir.
2002) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 844–45
(1999)).
See also Rolan, 680 F.3d at 317 (observing that a
petitioner satisfies the exhaustion requirement only after he
presents his claims in the “state court’s highest tribunal”).
Thus, where any available state procedure remains, even if only
theoretically, the claims cannot be deemed exhausted.
See 28
U.S.C. § 2254(c).
The exhaustion requirement “ensures that state courts have
an initial opportunity to pass upon and correct alleged
violations of prisoners’ federal rights.”
Leyva v. Williams,
504 F.3d 357, 366 (3d Cir. 2007) (quotation marks omitted).
12
The
failure to exhaust state remedies may be excused on the grounds
of futility only where there is “an absence of available State
corrective process,” or where “circumstances exist that render
such process ineffective to protect the rights of the
applicant.”
28 U.S.C. § 2254(b)(1)(B)(i)-(ii); Carpenter, 296
F.3d at 146; Jones v. Pennsylvania Bd. Of Probation and Parole,
492 F. App’x 242, 243-44 (3d Cir. 2012).
In this case, the State argues that Carrascosa has failed
to exhaust her state court remedies because she did not perfect
her direct appeal before the Appellate Division and the Supreme
Court of New Jersey.
Moreover, while Carrascosa had filed a
notice of appeal, it was dismissed for noted deficiencies in her
appellate brief, and that appeal allegedly has become permanent.
Petitioner’s habeas petition and her brief in support of
her petition allege that Petitioner raised all of her claims in
her notice of appeal.
However, Petitioner neglected to pursue
her direct appeal as directed by the Appellate Division, and
accordingly, her appeal was dismissed without any ruling on the
merits of her purported claims.
Accordingly, this Court finds
that this habeas petition is unexhausted and is subject to
dismissal on that ground as asserted by the State.
13
B.
Procedural Default Doctrine
The State also argues that the habeas petition should be
dismissed with prejudice because Carrascosa has procedurally
defaulted on her claims in state court.
“Where a state court refuses to consider a [habeas]
petitioner’s claims because of a violation of state procedural
rules, a federal ... court is [generally] barred by the
procedural default doctrine from considering the claims.”
Johnson v. Folino, 705 F.3d 117, 127 (3d Cir. 2013) (quoting
Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004).
Procedural default occurs when a claim has not been fairly
presented to the state courts (i.e., is unexhausted) and there
are no additional state remedies available to pursue, see Wenger
v. Frank, 266 F.3d 218, 223–24 (3d Cir. 2001); or, when an issue
is properly asserted in the state system but not addressed on
the merits because of an independent and adequate state
procedural rule.
Rolan, 680 F.3d at 317 (citations omitted).
“Ordinarily, violation of firmly established and regularly
followed state rules ... will be adequate to foreclose review of
a federal claim.
There are, however, exceptional cases in which
exorbitant application of a generally sound rule renders the
state ground inadequate to stop consideration of a federal
question.”
Lee v. Kemna, 534 U.S. 362, 376 (2002) (internal
14
quotation marks and citations omitted); Nara v. Frank, 488 F.3d
187, 199 (3d Cir. 2007) (holding that procedural default rests
on the violation of a state procedural rule that is “independent
of the federal question [presented] and adequate to support the
judgment”) (citations omitted).
The requirements of “independence” and “adequacy” are
distinct.
2004).
See Johnson v. Pinchak, 392 F.3d 551, 557–59 (3d Cir.
State procedural grounds are not independent, and will
not bar federal habeas relief, if the state law ground is so
“interwoven with federal law” that it cannot be said to be
independent of the merits of a petitioner’s federal claims.
See
Coleman v. Thompson, 501 U.S. 722, 739–40 (1991).
A state rule is “adequate” for procedural default purposes
if it was “firmly established, readily ascertainable, and
regularly followed at the time of the purported default.”
Szuchon v. Lehman, 273 F.3d 299, 327 (3d Cir. 2001) (citations
omitted).
These requirements ensure that “federal review is not
barred unless a habeas petitioner had fair notice of the need to
follow the state procedural rule,” Bronshtein v. Horn, 404 F.3d
700, 707 (3d Cir. 2005), and that “review is foreclosed by what
may honestly be called ‘rules’ ... of general applicability[,]
rather than by whim or prejudice against a claim or claimant.”
15
Id. at 708.
See also Thomas v. Secretary, Pennsylvania Dept. of
Corrections, 495 F. App’x 200, 204-05 (3d Cir. 2012).
Whether an issue was procedurally defaulted under state
rules can be a complex determination.
not enough.
A discretionary denial is
Federal review is barred only when state “review is
foreclosed by ‘what may honestly be called ‘rules’ ... of
general applicability[,] rather than by whim or prejudice
against a claim or claimant.”
Leyva, 504 F.3d at 366 (quoting
Bronshtein v. Horn, 404 F.3d 700, 707 (3d Cir. 2005)).
Thus the
state rule barring petitioner’s claim must be one that is
“firmly established and regularly followed.”
Walker v. Martin,
--- U.S. ----, 131 S.Ct. 1120, 1127, 179 L.Ed.2d 62 (2011)
(quoting Beard v. Kindler, 558 U.S. 53, 61 (2009)).
On that
issue, a reviewing federal court may consider whether “(1) the
state procedural rule speaks in unmistakable terms; (2) all
state appellate courts refused to review the petitioner’s claims
on the merits; and (3) the state courts’ refusal in this
instance is consistent with other decisions.”
Leyva, 504 F.3d
at 366 (quoting Jacobs v. Horn, 395 F.3d 92, 117 (3d Cir.
2005)).
Here, Carrascosa did present her purported claims on direct
appeal, but the Appellate Division dismissed her appeal without
addressing the merits of her claims because her brief was
16
deficient.
This Court finds that Carrascosa’s petition here is
procedurally defaulted because the Appellate Division’s
dismissal of her appeal was based on an independent and adequate
state procedural rule.
The state procedural ground on which the
dismissal was based, i.e., Carrascosa’s failure to comply with
N.J.Ct.R. 2:6-2(a) regarding the filing of a formal brief on
appeal, was plainly independent of the merits of Petitioner’s
claims and cannot be said to be “interwoven with federal law.”
Coleman, 501 U.S. at 739-40.
Moreover, this state procedural
rule is a firmly established rule of general applicability to
all litigants and was not applied against Carrascosa by “whim or
prejudice.”
Bronshtein, 404 F.3d at 708.
Finally, Petitioner
was given fair and adequate notice of the need to comply with
the state procedural rule before her appeal was dismissed.
The
Appellate Division issued two separate Orders, dated November 2,
2011 and December 7, 2011, informing Carrascosa of the
deficiencies in her appeal brief and appendix, and gave her
sufficient time to comply with the state court procedural rule
before dismissal of her appeal would become permanent on January
27, 2012.
(Ra3, Ra4.)
The Clerk of the Appellate Division also
wrote to Carrascosa on January 30, 2012 to inform Petitioner
that her motion to vacate dismissal and reinstate the appeal was
denied on December 7, 2011, and that the administrative
17
dismissal must be vacated by court order only after Petitioner
cures the deficiencies of her merits brief and appendix if she
intends to pursue her appeal.
(Ra5.)
Carrascosa did not attempt to cure the deficiencies of her
state appeal, but instead filed this habeas action completely
bypassing state court review.
Accordingly, her petition is
procedurally defaulted and should be dismissed.
While procedural default excuses exhaustion, it is a
double-edged sword, i.e., the doctrine was not created as an
incentive for state litigants to circumvent state court review.
Thus, a federal court may consider the merits of a procedurally
defaulted claim only if “the petitioner establishes ‘cause and
prejudice’ or a ‘fundamental miscarriage of justice’ to excuse
the default.”
Holloway v. Horn, 355 F.3d 707, 715 n. 3 (3d Cir.
2004) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
In order to show cause, a petitioner must ordinarily “show
that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.”
Crocker v. Klem, 450 F. App’x 136, 138 (3d Cir. 2011) (quoting
Murray v. Carrier, 477 U.S. 478, 488 (1986).
Carrascosa cannot make this showing.
In this case,
As pointed out by the
State, the dismissal of Carrascosa’s appeal was due to her own
failure to file a conforming merits brief and appendix
18
consistent with state court procedural rules.
The Appellate
Division gave Carrascosa fair notice and opportunity to cure the
deficiencies in her appeal brief but Carrascosa continued to
ignore her obligation.
Moreover, Carrascosa also was given the opportunity to
obtain counsel on direct appeal and she waived that right to
assigned counsel.
In a waiver hearing conducted on August 25,
2010, Judge Venezia determined that Carrascosa made a knowing,
voluntary and intelligent waiver of counsel.
(Ra7.)
Thus,
Carrascosa herself was the impediment and cause of her
procedural default, not any objective factor external to her
ability to comply with the state procedural rules governing the
submission of conforming briefs on appeal.
Carrascosa also fails to establish prejudice or a
fundamental miscarriage of justice.
To establish a fundamental
miscarriage of justice, a petitioner must generally demonstrate
“actual innocence.”
Leyva, 504 F.3d at 366; Peters v. Folino,
450 F. App’x 127, 131 (3d Cir. 2011) (noting that to satisfy the
fundamental-miscarriage-of-justice exception, a petitioner’s
claim must encompass a “colorable showing of factual innocence.”
(quoting McCleskey v. Zant, 499 U.S. 467, 495 (1991)).
See also
Schlup v. Delo, 513 U.S. 298, 327 (1995) (holding that a
petitioner must show that “the constitutional violation has
19
probably resulted in the conviction of one who is actually
innocent,” such that “no reasonable juror would have convicted
him in the light of the new evidence”).
In other words, to
excuse a procedural default with a gateway claim of actual
innocence, Carrascosa must first present “new, reliable evidence
... that was not presented at trial.”
Schlup, 513 U.S. at 324.
Here, Carrascosa fails to make a credible gateway showing
of actual innocence.
The State contends that the evidence
presented at trial amply showed that Carrascosa had taken her
daughter to Spain in violation of court orders and New Jersey
law.
Moreover, the “evidence” that Carrascosa has submitted in
this habeas action is not new or reliable evidence; rather, it
is the same as presented and rejected in her state court
proceedings. 7
Petitioner is simply re-filing the same repetitive
documents, which do not support her actual innocence.
Thus,
this Court finds that Carrascosa’s claims do not fall within the
fundamental miscarriage of justice exception to the procedural
7
In addition, the Court notes that Carrascosa’s repetitive and
voluminous documents are admittedly the same documents that she
filed in state appellate court, which were rejected as
nonconforming under state court rules. Even in this action,
Petitioner repeatedly submits the same documents again and again
for the alleged purpose of expanding the record. In this
regard, Carrascosa’s extraneous or superfluous filings in this
case likewise do not substantially conform to the Rules
Governing Section 2254 Cases in the United States District
Courts (“Habeas Rules”), in particular Habeas Rule 2(c) as to
the form of the petition, and Rule 7 regarding expansion of the
record.
20
default rule, because she has not demonstrated that she is
actually innocent of the crimes for which she was convicted.
See Schlup, 513 U.S. at 316; Marrero v. Horn, 505 F. App’x 174,
178-79 (3d Cir. 2012).
Therefore, because Petitioner cannot show cause and
prejudice to excuse her procedural default, or a fundamental
miscarriage of justice, the petition is dismissed without
prejudice as unexhausted and procedurally barred at this time.
Dismissal is without prejudice given the fact that the state
court has indicated to Carrascosa that she can still pursue her
appeal and vacate the administrative dismissal if she renews a
motion to vacate dismissal and reinstate her appeal with the
submission of a conforming brief and appendix.
(Ra4, Ra5 and
Ra6.)
V.
CERTIFICATE OF APPEALABILITY
This Court next must determine whether a certificate of
appealability should issue.
Rule 22.2.
See Third Circuit Local Appellate
The Court may issue a certificate of appealability
only if the petitioner “has made a substantial showing of the
denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
When a court denies a habeas petition on procedural grounds
without reaching the underlying constitutional claim, the
prisoner must demonstrate that jurists of reason would find it
21
debatable: (1) whether the petition states a valid claim of the
denial of a constitutional right; and (2) whether the court was
correct in its procedural ruling.
473, 484 (2000).
Slack v. McDaniel, 529 U.S.
“Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.”
Id.
For the
reasons discussed above, this § 2254 habeas petition is timebarred.
The Court also is persuaded that reasonable jurists
would not debate the correctness of this conclusion.
Consequently, a certificate of appealability will not be issued.
IV.
CONCLUSION
For the above reasons, this Court finds that the § 2254
habeas petition must be dismissed without prejudice as
unexhausted and procedurally defaulted at this time.
certificate of appealability will not issue.
A
An appropriate
Order follows.
s/SUSAN D. WIGENTON
United State District Judge
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