Angel Martinez v. NHSP

2000 DNH 028

• Court: District Court, D. New Hampshire
• Decided: January 28, 2000
• Docket: CV-99-372-B
• Status: Published

Opinion

Angel Martinez v . NHSP CV-99-372-B 01/28/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Angel Martinez

v. Civil N o . 99-372-B Opinion N o . 2000 DNH 028 Warden, NH State Prison

MEMORANDUM AND ORDER

Angel Martinez was convicted of several drug-related

offenses following a jury trial in state court. He did not

appeal, but later filed two habeas corpus petitions in state

court. The trial court denied both petitions. Again, Martinez

did not appeal. Instead, he filed a habeas corpus petition in

this court asserting that the state court erred in failing to

provide him with a trial transcript before ruling on his habeas

corpus petitions.

Martinez argues that an appeal to the State Supreme Court

would be futile at this point because he has missed the deadline

for filing an appeal. Accordingly, he invokes the futility exception to the general requirement that a habeas corpus

petitioner must exhaust state court remedies before filing for

habeas corpus relief in federal court. See Duckworth v . Serrano,

454 U.S. 1 , 3 (1981) (per curiam). The state concurs but argues

in a motion for summary judgment that Martinez’s failure to file

a timely state court appeal qualifies as a procedural default

pursuant to an independent and adequate state procedural rule

that prevents him from litigating his claim here. I agree.

When, as in the present case, a state court criminal

defendant defaults on federal constitutional claims in state

court, “federal habeas review of the claims is barred unless the

prisoner can demonstrate cause for the default and actual

prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman v . Thompson, 501

U.S. 722, 750 (1991).

Martinez asserts that his failure to pursue a timely state

court appeal was caused by the transfer of an inmate who was

-2- helping him with his habeas corpus petitions. He also suggests

that he has been hindered by his illiteracy and inability to

speak English. Following precedents from other jurisdictions, I

conclude that Martinez’s allegations do not excuse his failure to

file timely state court appeals. See, e.g., Weeks v . Bowersox,

119 F.3d 1342, 1349 n.7 (8th Cir. 1997) (en banc) (holding that

inmate’s claim that his illiteracy and state court’s failure to

explain post-conviction relief procedure did not excuse

procedural default), cert. denied, 522 U.S. 1093 (1998); Hughes

v . Idaho State Bd. of Corrections, 800 F.2d 905, 907-09 (9th Cir.

1986) (holding that inmate’s claim that he was illiterate and

that another inmate who was assisting him had been released

before post-conviction petition needed to be appealed did not

excuse procedural default).

Martinez also has failed to demonstrate that he would suffer

actual prejudice if I refuse to excuse his default. In order to

prove prejudice, a habeas corpus petitioner must establish a

“reasonable probability” of a different result at trial. See

-3- Strickler v . Greene, 527 U.S. 263, ___, 119 S . C t . 1936, 1952

(1999). In further defining this requirement, the Court has

recently stated: “‘The question is not whether the defendant

would more likely than not have received a different verdict . .

. but whether . . . he received a fair trial, understood as a

trial resulting in a verdict worthy of confidence.’” Id.

(quoting Kyles v . Whitley, 514 U.S. 419, 434 (1995)). Martinez

has failed to present any evidence that would call into question

the reliability of his trial verdict. For example, he does not

assert that he is innocent. Nor has he explained why a state

court judge might have vacated his conviction and why a jury, on

retrial, might have reached a different verdict if the

constitutional errors he cites had not occurred. As a result,

Martinez has not demonstrated that he would suffer actual

prejudice if I decline to excuse his procedural default. For

similar reasons, I reject Martinez’s contention that a failure to

excuse his procedural default would result in a fundamental

miscarriage of justice. Accordingly, petitioner’s motion for

-4- summary judgment (doc. n o . 10) is denied and defendant’s motion

for summary judgment (doc. n o . 12) is granted.

SO ORDERED.

Paul Barbadoro Chief Judge

January 2 8 , 2000

cc: Angel Martinez, pro se Constance Stratton, Esq.

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