Flores-Ramirez v. Baenen

Filing 26

ORDER signed by Judge J P Stadtmueller on 2/23/15: denying 1 Petitioner's Petition for Writ of Habeas Corpus; denying a certificate of appealability as to the Petition; and DISMISSING this action with prejudice. See Order. (cc: Petitioner, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CESAR FLORES-RAMIREZ,
Petitioner,
v.

Case No. 14-CV-344-JPS

BRIAN FOSTER,
Respondent.

ORDER

The petitioner, Cesar Flores-Ramirez (“Mr. Ramirez”), filed a petition
for a writ of habeas corpus raising three claims. Mr. Ramirez had previously
raised two of those claims in an earlier petition. (See Docket #6 (citing FloresRamirez v. Pollard, Case No. 06-CV-56)). Thus, the Court found that the
petition was likely barred as second or successive, but was concerned with
dismissing the petition in its entirety because the third claim, relating to the
insufficiency of a post-conviction hearing, had never been raised before. (See
Docket #6 at 2–3). The Court requested further briefing from the respondent
(“the State”) on this issue, but noted that the State could also argue that there
was some other bar preventing the Court from considering that third
ground. (See Docket #6 at 3–5). The State responded, primarily arguing that
the third ground was procedurally defaulted. (Docket #13). The Court
agreed, but noted that Mr. Ramirez should have an opportunity to show
“either: (1) that: (a) there was cause for his procedural default of the due
process claim; and (b) he suffered prejudice therefrom; or (2) there will be a
miscarriage of justice if this Court does not consider the petitioner’s claims.”
(Docket #16 at 3–4 (citing Harris v. Reed, 489 U.S. 255, 263 (1989); Woods v.
Schwartz, 489 F.3d 368, 373 (7th Cir. 2009))). The Court directed briefing from
the parties on that topic, which is now complete. (Docket #22, #25).

Mr. Ramirez cannot show cause, prejudice, or a miscarriage of justice;
therefore, his third claim cannot escape procedural default.
“Cause for a default is ordinarily established by showing that some
type of external impediment prevented the petitioner from presenting his
claim.” Richardson v. Lemke, 745 F.3d 258, 272 (citing Lewis v. Sternes, 390 F.3d
1019, 1026 (7th Cir. 2004)). Mr. Ramirez makes, at most, three separate
arguments in favor of a finding of cause: (1) that the facts supporting his
third claim were not available at the time that he procedurally defaulted on
the claim; (2) that he appealed pro se, assisted solely by a fellow inmate; and
(3) that he attempted to file a reconsideration motion to more fully develop
the argument. None of those establishes cause. The first is clearly incorrect,
as the factual basis for the claim—that the circuit court did not subpoena
necessary witnesses for the post-conviction hearing—was obviously known
to Mr. Ramirez at the time of his appeal from that hearing. (See Docket #1,
Ex. 1 at 61). This is not a situation where the factual basis for Mr. Ramirez’s
claim was unavailable as may constitute cause under Murray v. carrier, 477
U.S. 478, 488 (1986). The second argument fails because a litigant’s pro se
status is—as a matter of law—not sufficient cause to excuse procedural
default. See, e.g., Smith v. McKee, 598 F.3d 374, 385 (7th Cir. 2010); Harris v.
McAdory, 334 F.3d 665, 668 (7th Cir. 2003); Salberg v. United States, 969 F.2d
379, 383 (7th Cir. 1992) (citing Prihoda v. McCaughtry, 910 F.2d 1379, 1386 (7th
Cir. 1990); Harmon v. Barton, 894 F.2d 1268, 1275 (11th Cir. 1990); Hughes v.
Idaho State Bd. of Corrections, 800 F.2d 905, 908 (9th Cir. 1986)). As to the third
argument, Mr. Ramirez’s later attempt to correct his failure to adequately
raise his ground does not show that some external impediment prevented
him from adequately raising the ground in the first place.

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“Prejudice is established by showing that the violation of the
petitioner’s federal rights, ‘worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.’” Promotor
v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010) (emphasis in original) (quoting
Lewis, 390 F.3d at 1026). Mr. Ramirez has not shown how the testimony of the
absent witnesses affected his post-trial hearing. In any event, the Court
cannot find any case law to support Mr. Ramirez’s position that the failure
of the circuit court to call those witnesses at the post-conviction hearing
worked to his “actual and substantial disadvantage.”
Finally, Mr. Ramirez has not even come close to establishing a
fundamental miscarriage of justice.
The fundamental miscarriage of justice standard erects an
extremely high bar for the habeas petitioner to clear. It applies
only in the rare case where the petitioner can prove that he is
actually innocent of the crime of which he has been convicted.
Such proof must take the form of “new reliable
evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” The petitioner must
prove, based on this evidence, that it was more likely than not
that no jury would have convicted him at trial were the new,
exculpatory evidence available.
McDowell v. Lemke, 737 F.3d 476, 483 (7th Cir. 2013) (internal citations
omitted) (citing Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir.2003); Schlup v.
Delo, 513 U.S. 298, 324 (1995)). Mr. Ramirez has not set forth any new
evidence—let alone reliable evidence—that would convince the Court that
a reasonable jury would not have convicted him. As such, he has not
established a fundamental miscarriage of justice.

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Having determined that Mr. Ramirez has not shown cause-andprejudice or a miscarriage of justice, the Court must conclude that his
procedural default of his third claim is fatal to his ability to now assert that
claim.
Thus, even if Mr. Ramirez’s entire petition is not barred as second or
successive, the portion that would not be so barred is clearly procedurally
defaulted. The Court is, therefore, obliged to deny his petition in its entirety.
Finally, under Rule 11(a) of the Rules Governing Section 2254 Cases,
“the district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), 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 resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). While Rule 11(a) permits a district court to direct the parties to
submit arguments on whether a certificate of appealability should be issued,
additional arguments are not necessary here. The denial of the petition is
two-fold—based upon successiveness and procedural default—and both
foundations are solid. No reasonable jurist would disagree with the Court’s
determination.
Accordingly,
IT IS ORDERED that Mr. Ramirez’s petition for a writ of habeas corpus
(Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to the
petition be and the same is hereby DENIED; and
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IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 23rd day of February, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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