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Aguiar v. Cassady

United States District Court, W.D. Missouri, Western Division

August 8, 2016

CARLOS ALONSO AGUIAR, Petitioner,
v.
JAY CASSADY, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

          GARY A. FENNER UNITED STATES DISTRICT JUDGE.

         Petitioner, a convicted state prisoner currently confined at Jefferson City Correctional Center in Jefferson City, Missouri, has filed pro se this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2010 convictions and sentences for four counts of first-degree robbery and one count of armed criminal action, which were entered in the Circuit Court of Camden County, Missouri. Petitioner’s convictions and sentences were affirmed on direct appeal. Doc. 9-5. Petitioner’s motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 29.15 was denied without an evidentiary hearing. Doc 9-8.

         Background Facts

         In the spring of 2009, Petitioner was identified as the man who committed four armed robberies between May 2 and June 5. Doc. 9-1, pp. 100-144. Prior to trial, Petitioner filed a notice of intent to plead not guilty by reason of mental disease or defect.[1] Doc. 9-4, pp. 25-26. On November 17, 2010, following trial, a Camden County jury rejected Petitioner’s NGRI defense and found him guilty of four counts of first-degree robbery and one count of armed criminal action. Doc. 9-1, pp. 77. Petitioner was sentenced to twenty-five years for each count of robbery and ten years for the armed criminal action count, all to run concurrent with each other. Id. at 80. The Missouri Court of Appeals, Southern District, affirmed Petitioner’s convictions on direct appeal. Doc. 9-5.

         Petitioner filed pro se a Form 40 seeking post-conviction relief pursuant to Mo. Sup. Ct. R. 29.15. Doc. 9-6. Counsel was appointed and thereafter filed a Statement in lieu of Amended Motion for post-conviction relief, which was denied without an evidentiary hearing. Doc. 9-6; Doc. 9-8. Petitioner did not appeal the denial of his post-conviction relief. Doc. 9-7.

         Discussion

         Petitioner raises four grounds for relief: (1) Petitioner was denied an interpreter; (2) Petitioner’s pro se post-conviction motion was never notarized; (3) the state-court judgment denying post-conviction relief was never signed; and (4) Petitioner’s counsel was ineffective for an unspecified reason.[2] Doc. 1, pp. 14-15.

         I. Ground 1 is procedurally defaulted.

         In Ground 1, Petitioner argues that his entire case was “fundamentally unfair” because he “could not speak English and did not have an interpreter[.]” Doc. 1, pp. 14-15. Respondent contends that Ground 1 is procedurally defaulted and, alternatively, is refuted by the record. Doc. 9, pp. 3-4.

         “A habeas petitioner is required to pursue all available avenues of relief in the state courts before the federal courts will consider a claim.” Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir. 1995), cert. denied, 516 U.S. 1056 (1996). “[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process” before presenting those issues in an application for habeas relief in federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “If a petitioner fails to exhaust state remedies and the court to which he should have presented his claim would now find it procedurally barred, there is a procedural default.” Sloan, 54 F.3d at 1381.

         Petitioner did not assert Ground 1 on direct appeal (Doc. 9-2; Doc. 9-5) or in his motion for post-conviction relief (Doc. 9-6, pp. 2-3; Doc. 9-8). As a result, these claims are procedurally defaulted. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997) (recognizing that failure to present claims in the Missouri Courts at any stage of direct appeal or post-conviction proceedings is a procedural default), cert. denied, 523 U.S. 1010 (1998). A federal court may not review procedurally defaulted claims “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). Under the cause and prejudice test, cause “must be something external to the petitioner, something that cannot fairly be attributed to him.” Id. at 753 (emphasis in original).

         Petitioner fails to establish cause and prejudice for the procedural default of Ground 1. Notably, the record reflects that Petitioner did, in fact, have an interpreter at trial and during sentencing. Doc. 9-1, pp. 3, 73; Doc. 9-1, p. 16. Insofar as Petitioner intended to claim that ineffective assistance of counsel caused the procedural default of Ground 1, that claim is without merit for the reasons set forth in Ground 4. Petitioner also fails to show that a fundamental miscarriage of justice will result if his defaulted claim is not considered. See Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006) (a petitioner must present new evidence that affirmatively demonstrates that he is actually innocent of the crime for which he was convicted in order to fit within the fundamental miscarriage of justice exception), cert. denied, 549 U.S. 1036 (2006). Consequently, Ground 1 is procedurally defaulted and is denied.

         II. Grounds 2 and 3 are not cognizable, and, alternatively, are without merit.

         In Ground 2, Petitioner contends that his post-conviction motion was “improper, unlawful, and unverified” because it was never notarized. Doc. 1-1, p. 2; Doc. 1, p. 14. In Ground 3, Petitioner contends that the judgement denying state post-conviction relief is “false” and a “fraud or gross error” because it was “not signed.” Doc. 1-1, p. 8; Doc. 1, ...


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