Rubin R. Weeks v. Mike Bowersox

106 F.3d 248
Court of Appeals for the Eighth Circuit·Decided March 6, 1997·No. 95-4123·Published·Cited by 9 cases

Opinions

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Rubin R. Weeks appeals the dismissal of his petition for writ of habeas corpus. We reverse and remand for further proceedings.

I.

Mr. Weeks pleaded guilty in Missouri state court to kidnapping and rape. At his plea hearing, he admitted committing the offenses and denied that anyone had threatened or forced him to plead guilty. Based on his plea, the court entered a judgment of guilty against him and sentenced him to concurrent sentences of thirty years.imprisonment and life imprisonment. The court also told Weeks about the availability of post-conviction relief under Mo.R.Crim.P. 24.035. That rule provides the sole means of relief from a guilty plea that is entered in a Missouri court, and it requires a prisoner to file a form asking the court to vacate his plea. The court gave Weeks a copy of that form, read the entire form to him, and told his lawyer to explain it to him further. The court did not, however, mention the fact that the rule requires the form to be filed within ninety days after a plea is entered.

Weeks asserts that at the time of the hearing, he was illiterate. Sometime after the hearing, Weeks contends, he learned to read and write, but he never filed the required Rule 24.035 motion. Instead, more than two years after he entered his plea, he filed a state habeas petition alleging his innocence. The state court dismissed that petition because Weeks had never filed a Rule 24.035 motion.

Weeks then filed a federal habeas petition, claiming that his guilty plea was coerced and that he had evidence proving his innocence. A magistrate judge denied the petition, holding that Weeks’s failure to file a Rule 24.035 motion defaulted his claims, and that Weeks had not shown either cause and prejudice or actual innocence to lift the procedural bar.

On appeal, Weeks contends that the magistrate judge should not have dismissed his habeas petition because no state court has found him guilty of a procedural default, because he can demonstrate cause and prejudice for any default that he may have committed, and because he can demonstrate his actual innocence. We address each of these contentions in turn.

II.

Weeks first argues that- the magistrate judge should not have dismissed his petition because no state court has found him to be in procedural default. This contention is meritless. A state procedural default bars federal habeas review when the last state court to consider a claim clearly and expressly rests its judgment on that default. Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043—44, 103 L.Ed.2d 308 (1989). The last state court to consider Weeks’s claim clearly and expressly stated that it was denying relief to Weeks because he had failed to file a Rule 24.035 motion. The court’s further [250]*250statement that it found Weeks’s allegations meritless does not undo Weeks’s procedural default. See id.; Pollard v. Delo, 28 F.3d 887, 889 (8th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 518, 130 L.Ed.2d 423 (1994).

Weeks next contends that the state court’s inadequate explanation of Rule 24.035, coupled with his illiteracy, excuses his procedural default. While we sympathize with Weeks’s plight, we must reject that contention. State prisoners may obtain federal habeas review of claims that they have procedurally defaulted in state court if they show cause for that default and prejudice from it. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991). Only an impediment external to the defense that prevents a petitioner from complying with the state rule constitutes cause for procedural default. McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 1471-72, 113 L.Ed.2d 517 (1991).

Weeks has not asserted the existence of an external impediment constituting cause for his procedural default. A prisoner’s illiteracy and pro se status are not cause. See Stanley v. Lockhart, 941 F.2d 707, 710 (8th Cir.1991); Vasquez v. Lockhart, 867 F.2d 1056, 1058 (8th Cir.1988), cert. denied, 490 U.S. 1100, 109 S.Ct. 2453, 104 L.Ed.2d 1007 (1989). Nor does a judge’s failure to delineate every feature of a state’s post-conviction relief constitute cause. See Hart v. Purkett, 95 F.3d 638, 639 (8th Cir.1996) (per curiam); Vaughan v. Groose, 884 F.Supp. 339, 343 (W.D.Mo.1995), aff'd, 89 F.3d 842 (8th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 402, 136 L.Ed.2d 316 (1996). While we think that the state court might well have felt moved to explain Missouri’s rules with extra care due to Weeks’s illiteracy, it neither misled Weeks nor prevented him from learning about the relevant time limit. The court sufficiently alerted Weeks to the rule’s existence; and it gave him the relevant form, read it to him, and told his lawyer to explain it to him further. Although the form does not itself mention a time limit, it does cite Rule 24.035, and that rule’s language states the ninety-day time limit with clarity. By simply asking either his trial attorney or a literate fellow inmate about the form and the rule, Weeks could easily have discovered their contents.

III.

Lastly, Weeks averred in his pleadings that he is actually innocent of the charges. This averment, he argues, lifts the procedural bar resulting from his failure to file a Rule 24.035 motion. If Weeks can prove what he asserts, he is correct.

Prisoners who cannot show cause and prejudice excusing a procedural default may nevertheless obtain federal habeas review of their constitutional claims by presenting a gateway claim of actual innocence. Schlup v. Delo, 513 U.S. 298, —, 115 S.Ct. 851, 861, 130 L.Ed.2d 808 (1995). To pass through this gateway, a petitioner must present new, reliable evidence that establishes “that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. at —, 115 S.Ct. at 867. Examples of evidence sufficient to establish actual innocence include trustworthy witnesses and exculpatory scientific evidence. See Pitts v. Norris, 85 F.3d 348, 350-51 (8th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 403, 136 L.Ed.2d 317 (1996).

When a judgment is entered on a guilty plea instead of a verdict, courts assess a prisoner’s Schlup claim by examining and weighing the evidence each side has asserted that it could produce at trial. Brownlow v. Groose, 66 F.3d 997, 999 (8th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 1049, 134 L.Ed.2d 194 (1996).

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Rubin R. Weeks v. Mike Bowersox, 106 F.3d 248 (8th Cir. 1997).

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