Jose L. Gonzales v. Stephen Kaiser, 7 F.3d 1044, 10th Cir. (1993)

7 F.
3d 1044
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Jose L. GONZALES, Petitioner-Appellant,

v.
Stephen KAISER, Respondent-Appellee.
No. 93-6230.
United States Court of Appeals, Tenth Circuit.

Oct. 8, 1993.
Before LOGAN, MOORE and BRORBY, Circuit Judges.

ORDER AND JUDGMENT*
BRORBY, Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
Mr. Gonzales, a state inmate and pro se litigant, appeals the denial of habeas
corpus relief. We grant Mr. Gonzales permission to appeal in forma pauperis
and affirm the district court's decision.
Mr. Gonzales was convicted of first degree murder and sentenced to life
imprisonment.1 The facts of the conviction stemmed from Mr. Gonzales
shooting the victim eleven times with a nine-shot revolver. The jury rejected
Mr. Gonzales' theory that he acted in self defense.
In his current habeas corpus petition challenging the state court conviction, Mr.
Gonzales set forth three grounds for relief: (1) the trial court's failure to hold a
competency hearing; (2) the essential elements of first degree murder were not
"specifically and distinctly" alleged; and (3) ineffective assistance of counsel in
failing to raise the first two issues in his direct appeal and failure to investigate
and raise his mental health problems at his state trial.
Mr. Gonzales filed four applications for post conviction relief in state court.
The first was dismissed as Mr. Gonzales failed to follow the state required
procedures. In his second petition, Mr. Gonzales argued ineffective counsel due
to his attorney's failure to furnish Mr. Gonzales with copies of the pleadings,
briefs and transcript. Relief was denied, and this was affirmed on appeal. In his
third petition, Mr. Gonzales argued his defense was insanity and the evidence
was insufficient to prove his sanity. This petition was dismissed as successive
and no appeal was filed. In his fourth petition, Mr. Gonzales raised the same
arguments now asserted. The Oklahoma Court of Criminal Appeals concluded
Mr. Gonzales "has not raised any issues that he did not or could not have raised
in his appeal or in his three previous post-conviction applications" and
concluded Mr. Gonzales' claims were procedurally defaulted.
The United States District Court concluded that none of the attorney
deficiencies alleged by Mr. Gonzales violated the mandates of Strickland v.
Washington, 466 U.S. 668 (1984), and the balance of Mr. Gonzales' claims
were procedurally barred for failure to show cause and prejudice.
Mr. Gonzales appeals asserting pro se petitioners are held to a lesser standard in
showing "cause" and rearguing his remaining contentions.
The law we must apply is simple and well established. The general rule is that
defaulted claims may not be considered on habeas corpus unless the petitioner
shows both cause as to why the normal state procedures were not followed and
prejudice from the alleged constitutional violations. Coleman v. Thompson, --U.S. ----, ----, 111 S.Ct. 2546, 2565 (1991). The only way around this hurdle is
for petitioner to allege facts showing a fundamental miscarriage of justice. Id.
It would be unique to hold Mr. Gonzales to one standard (show good cause for
failure to raise constitutional issue in prior proceeding) and excusing Mr.
Gonzales under another (pro se petitioner does not have to demonstrate cause).
Cf. Rodriguez v. Maynard, 948 F.2d 684, 687 (10th Cir.1991) (the cause and
prejudice standard, in abuse of habeas corpus writ cases, applies to pro se
petitioners just as it applies to petitioners represented by counsel). A pro se
petitioner is not held to the same procedural standard as would be expected of
an attorney; however, a pro se petitioner is held to the same standard insofar as

compliance with substantive law is concerned. In short, a pro se habeas corpus
petitioner must allege cause to excuse his procedural default and this Mr.
Gonzales has not done nor has he alleged a fundamental miscarriage of justice.
10
Habeas corpus petitioners should realize they are not entitled to assert habeas
corpus relief every time they develop a new theory of their case. If an issue is
not raised in a prior post conviction relief proceeding and if a state holds a
second proceeding is procedurally barred, then a habeas corpus petitioner must
be prepared to show cause and prejudice or a fundamental miscarriage of
justice.
11
Mr. Gonzales has also claimed ineffective assistance of counsel. First, Mr.
Gonzales has no constitutional right to counsel in post conviction relief
proceedings. Second, under Strickland, Mr. Gonzales must show both that
counsel's performance was deficient and there exists a reasonable probability
that but for counsel's unprofessional errors the result of the proceedings would
have been different. Mr. Gonzales has failed on both counts. He has failed to
allege facts showing either deficient performance or prejudice and has merely
stated conclusions.
12
The judgment of the district court is AFFIRMED.
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
This conviction was affirmed on direct appeal. See Gonzales v. State, 388 P.2d
312 (Okla.Crim.App.1964)

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7 F.

Jose L. GONZALES, Petitioner-Appellant,

United States Court of Appeals, Tenth Circuit.

Before LOGAN, MOORE and BRORBY, Circuit Judges.

an attorney; however, a pro se petitioner is held to the same standard insofar as

The judgment of the district court is AFFIRMED.

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