FIGUEROA v. WALL, (D.R.I. 2000)

JACOB HAGOPIAN, United States Magistrate Judge

This matter is before the Court on the motion of the petitioner, Beranrdo Figueroa, pro se, to reconsider this Court's previous determination in a Report and Recommendation on April 27, 2000, that his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was time barred.

Petitioner, in the instant motion, asserts that he neglected to include relevant information regarding his state collateral attacks that would have tolled the time limitation period imposed by § 2244 of Title 28 of the U.S. Code. After reviewing petitioner's motion, I have determined that it should be Granted, and this addendum issued. However, the recommendation that the petitioner's application be denied and dismissed remains the same.

On October 12, 1990, a Providence County Superior Court jury convicted the petitioner of second degree murder in the death of his wife, Susan Joubert Figueroa. Following his conviction, the petitioner timely appealed to the Rhode Island Supreme Court, contending that the trial justice erred by failing to grant a mistrial after a witness made a prejudicial remark and that the trial justice erred in her instruction to the jury on the evidence of flight. The Supreme Court disagreed with both of petitioner's contentions and affirmed his conviction. State v. Figueroa, 673 A.2d 1084 (R.I. 1996).

On November 26, 1996, petitioner filed his first motion for post conviction relief in the Superior Court. However, on July 23, 1997, petitioner's motion was dismissed. Then on January 5, 1998, petitioner filed a second application for post conviction relief in the Rhode Island Superior Court. Petitioner then contended that his trial counsel was ineffective and alleged prosecutorial misconduct. The Superior Court dismissed that application on May 15, 1998. Petitioner appealed the dismissal of his post conviction relief application to the Rhode Island Supreme Court. On March 3, 2000, petitioner voluntarily withdrew that appeal. The Supreme Court, therefore, never rendered a decision on the merits of his appeal.

Petitioner is now before the court on an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting ineffective assistance of trial counsel and prosecutorial misconduct.

Before a federal court may grant habeas relief, a petitioner must exhaust his remedies available in state court. In other words, the petitioner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. This is known as the exhaustion doctrine, first announced in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734 (1886), and is now codified at 28 U.S.C. § 2254(b)(1).

A petitioner satisfies the exhaustion doctrine by `fairly' presenting his claims to the highest state court with jurisdiction to consider them. Keeney v. Tamayo-Reves, 504 U.S. 1, 9, 112 S.Ct. 1715, 1719 (1992); Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971). This means that the habeas corpus petitioner must have presented the substance of his federal constitutional claim to the state appellate court so that the state had the first chance to correct the claimed constitutional error. See Lanigan v. Maloney, 853 F.2d 40 (1^st Cir. 1988).Only if the same factual and legal theory that forms the basis of the petitioner's habeas petition has been presented to state court will the petition for writ be properly before the federal court. Scarpa v. Dubois, 38 F.3d 1, 6 (1^st Cir. 1994); Nadworny v. Fair, 872 F.2d 1093, 1096 (1^st Cir. 1989). A claim is not considered exhausted if the petitioner "has the right under the law of the state to raise, by any procedure available, the question presented." 28 U.S.C. § 2254(c).

In determining whether a petitioner has exhausted state remedies, federal courts are authorized, indeed required, to assess the likelihood that a state court will accord the habeas petitioner a hearing on the merits of his claim. O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1733 (1999); Hall v. DiPaolo, 986 F.2d 7, 9 (1^st Cir. 1993). A federal court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred. O'Sullivan, 119 S.Ct. at 1733. The exhaustion doctrine turns on the "availability" of a state court remedy. Id. If no procedures remain available to the petitioner in state court, he satisfies the exhaustion requirement. Id.

Here Figueroa has exhausted his available state remedies. He appealed directly appeal to the Rhode Island Supreme Court following his conviction. Thereafter he filed two motions for post conviction relief. In the first motion, the superior court rejected his application and petitioner did not appeal. In the second post conviction relief motion, petitioner asserted the same grounds that he asserts in this instant habeas petition, ineffective assistance of counsel and prosecutorial misconduct, thereby giving the state trial court an opportunity to address the claimed errors. The trial court again rejected his application, and petitioner appealed to the Rhode Island Supreme Court. However, petitioner voluntarily withdrew his appeal, removing any possibility that the Supreme Court would rule on the issues presented. Since no other avenues exist to present his claims to the state courts, he has satisfied the exhaustion doctrine.

However, when a habeas petitioner fails to present his claims to the state's highest appellate court, the petitioner has procedurally defaulted on presenting those claims in a federal habeas petition. In order to overcome procedural default, the habeas petitioner must show cause for that default and prejudice arising therefrom before a federal court may reach the merits of his habeas claims. Wainwright v. Stykes, 433 U.S. 72, 87-91, 97 S.Ct. 2497, 2506-2506 (1977);Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639 (1986); Hall, 986 F.2d. At 9. Absent a showing of cause and prejudice, a federal habeas court is precluded from reviewing the merits of a defaulted claim.

To demonstrate cause for a procedural default, the petitioner must show "that some objective factor external to the defense impeded counsel's efforts to comply with the state's procedural rule".Murray, 477 U.S. at 487. The Supreme Court noted in Murray that cause could be demonstrated by showing a factual or legal basis of a claim that was not reasonably available to defense counsel or that interference by officials made compliance impracticable. Id.

Alternatively, the cause and prejudice standard may be satisfied where a review of the state prisoner's claim is necessary to correct a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 748, 111 S.Ct. 2546, 2563 (1991). This exception maybe satisfied by demonstrating that it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt in light of any new evidence. Schlup v. Delo, 513 U.S. 298, 322-323, 115 S.Ct. 851, 864 (1995).

Here, Figueroa presented the same claims he asserts in his instant habeas petition to the state trial court in his second application for post conviction relief, and then appealed the denial of that application to the state Supreme Court. However, petitioner purposefully withdrew that appeal, denying the Supreme Court an opportunity to address the claimed errors. Here petitioner offers the court no valid reason for voluntarily withdrawing his appeal of his second motion for post conviction relief to the Rhode Island Supreme Court. In fact, petitioner offers no reasons whatsoever. Petitioner thus fails to demonstrate cause necessary to overcome his procedural default.

The petitioner here also fails to demonstrate a fundamental miscarriage of justice. Petitioner offers the court no new evidence that would demonstrate that it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt. Accordingly, Figueroa's instant habeas petition should be denied and dismissed. I so recommend.

For the reasons stated above, I recommend that the petitioner's application for a writ of habeas corpus be denied and dismissed. Any objection to this report and recommendation must be specific and must be filed with the clerk of court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes a waiver of both the right to review by the district court and the right to appeal the district court's decisions. United States v. Valencia Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).