United States District Court, D. New Jersey
L. LINARES, United States District Court Chief Judge
or about October 17, 2011, Petitioner Misael Cordero filed
his petition for a writ of habeas corpus challenging
his 2002 conviction for first-degree murder in the Superior
Court of New Jersey. (ECF No. 1).
February 26, 2014, this Court entered an Order and Opinion
denying Petitioner's habeas petition on the
merits. (ECF Nos. 34-35). Petitioner thereafter appealed that
decision to the United States Court of Appeals for the Third
Circuit. (ECF No. 36-39).
December 22, 2016, the Third Circuit remanded the matter to
this Court so this Court can consider one of Petitioner's
claims which was not fully addressed in this Court's
prior opinion - his assertion that he would have pled guilty
had Petitioner been properly advised as to the applicability
of gap time to any proposed plea. (Document 2 attached to ECF
January 13, 2017, this Court received the mandate issued by
the Court of Appeals formally remanding this matter. (ECF No.
January 24, 2017, this Court entered a scheduling order
directing Respondents to address the issues before the Court
on remand. (ECF No. 44). The Court thereafter permitted
Petitioner to amend his sole remaining claim - that he would
have pled guilty given constitutionally adequate advice from
counsel. (See ECF No. 66).
Following remand and his amendment, Petitioner has only one
set of claims before this Court -that trial counsel was
constitutionally ineffective in advising him as to plea deals
offered by the state, either because he failed to explain how
gap time credits would reduce Petitioner's proposed
sentences or failed to ascertain that certain charges in
those deals would be dismissed as time barred. As Petitioner
has conceded before both this Court and the Court of Appeals,
he failed to adequately raise his ineffective assistance of
plea counsel claim before the state courts during his
post-conviction relief (PCR) proceedings, and this claim is
therefore procedurally defaulted. See Cordero v.
Warren, 673 Fed.Appx. 254, 257 (3d Cir. 2016).
Petitioner, however, contends that this Court can hear his
claims despite his default because he only defaulted on those
claims because of ineffective assistance of PCR counsel.
the Supreme Court has recently explained,
a federal court may not review federal claims that were
procedurally defaulted in state court. . .. "Just as in
those cases in which a state prisoner fails to exhaust state
remedies, a habeas petitioner who has failed to meet the
State's procedural requirements for presenting his
federal claims has deprived the state courts of an
opportunity to address" the merits of "those claims
in the first instance." Coleman [v.
Thompson, 501 U.S. 722, 731-32 (1991)]. The
procedural default doctrine thus advances the same comity,
finality, and federalism interests advanced by the exhaustion
doctrine. See McCleskey v. Zant, 499 U.S. 467,
A state prisoner may overcome the prohibition on reviewing
procedurally defaulted claims if he can show
"cause" to excuse his failure to comply with the
state procedural rule and "actual prejudice resulting
from the alleged constitutional violation."
Wainwright v. Sykes, 433 U.S. 72, 84[(1977)];
Coleman, [501 U.S.] at 750[.] To establish
"cause"-the element of the doctrine relevant in
this case-the prisoner must "show that some objective
factor external to the defense impeded counsel's efforts
to comply with the State's procedural rule."
Murray v. Carrier, 477 U.S. 478, 488[(1986)]. A
factor is external to the defense if it "cannot fairly
be attributed to" the prisoner. Coleman, [501
U.S.] at 753[.]
It has long been the rule that attorney error is an objective
external factor providing cause for excusing a procedural
default only if that error amounted to a deprivation of the
constitutional right to counsel. See Edwards v.
Carpenter, 529 U.S. 446, 451 [(2000)]. An error
amounting to constitutionally ineffective assistance is
"imputed to the State" and is therefore external to
the prisoner. Murray, [477 U.S.] at 488[.] Attorney
error that does not violate the Constitution, however, is
attributed to the prisoner "under well-settled
principles of agency law." Coleman, [501 U.S.]
at 754[.] It follows, then, that in proceedings for which the
Constitution does not guarantee the assistance of counsel at
all, attorney error cannot provide cause to excuse a default.
Thus, in Coleman, this Court held that attorney
error committed in the course of state postconviction
proceedings-for which the Constitution does not guarantee the
right to counsel, see Murray v. Giarratano, 492 U.S.
1 [(1989)] (plurality opinion)-cannot supply cause to excuse
a procedural default that occurs in those proceedings. 501
U.S. at 755[.]
In Martinez [v. Ryan,566 U.S. 1 (2012)],
this Court announced a narrow, "equitable . . .
qualification" of the rule in Coleman that
applies where state law requires prisoners to raise claims of
ineffective assistance of trial counsel "in an
initial-review collateral proceeding, " rather than on
direct appeal. Martinez, 566 U.S. at 16, 17[.] It
held that, in those situations, "a procedural default
will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if the
default results from the ineffective assistance of the
prisoner's counsel in the collateral proceeding.
Id. at 17[.] In Trevino [v. Thaler, 569
U.S. 413 (2013)], the Court clarified that this exception
applies both where state law explicitly prohibits prisoners
from bringing claims of ineffective assistance of trial
counsel on direct appeal and where the State's