Cordero v. Warren

          MEMORANDUM OPINION

          JOSE L. LINARES, United States District Court Chief Judge

         IT APPEARING THAT:

         1. On 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).

         2. On 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).

         3. On 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 No. 43).

         4. On January 13, 2017, this Court received the mandate issued by the Court of Appeals formally remanding this matter. (ECF No. 43).

         5. On 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).

         6. 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.

         7. As 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, 493[(1991)].

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 "procedural ...