REPORT AND RECOMMENDATION
LEO I. BRISBOIS, Magistrate Judge.
This matter is before the undersigned Magistrate Judge of the District Court on the petition of Steven Scott Samuelson, ("Petitioner"), for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1.) Respondent has filed a response, (Docket Nos. 8-15), contending that the petition should be dismissed, and Petitioner has filed a Reply Memorandum with supporting materials, (Docket Nos. 16-20). The case has been referred to this Court for report and recommendation under 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, the Court will recommend that Petitioner's habeas corpus petition be DENIED, and that this action be DISMISSED WITH PREJUDICE.
I. BACKGROUND
In November 2009, Petitioner was charged with assaulting his girlfriend, who is referred to in the record as "JLB." At Petitioner's first court appearance in that matter, the state trial court judge entered a "Domestic-Abuse No Contact Order," or "DANCO," pursuant to Minn.Stat. § 518B.01, subd. 22.1 The judge explained to Petitioner that the DANCO prohibited him from having any contact with JLB, and he asked Petitioner whether he understood the DANCO restrictions. Petitioner said that he did understand the DANCO. During the course of the next six weeks, however, Petitioner violated the DANCO numerous times while he was being detained at the Itasca County Jail. As a result, new charges were filed against Petitioner for violating the DANCO.
A jury found Petitioner guilty of more than 30 DANCO violations, and he was sentenced to an aggregate prison term of five years and five days. Petitioner is presently serving his sentence at the Minnesota Correctional Facility in Faribault, Minnesota.
After Petitioner was convicted and sentenced, he filed a direct appeal with the Minnesota Court of Appeals. On appeal, Petitioner argued, inter alia, that (1) the DANCO statute that he was convicted of violating is unconstitutionally vague, and (2) a DANCO order violates the constitutional "right to privacy" if the person to be protected by the order (in this case JLB) opposes the order and avers that there are no valid grounds for it. The Minnesota Court of Appeals summarily rejected both of those arguments, because they had not been presented to the trial court, and thus they had not been properly preserved for appeal. Addressing the "void for vagueness" claim, the Court of Appeals explained:
"We decline to address this issue on the merits. This is primarily because [Petitioner] did not raise it to the district court, which precludes appellate review because a challenge to the constitutionality of a criminal statute may not be raised for the first time on appeal. State v. Williams, 794 N.W.2d 867, 874 (Minn.2011); State v. Kager, 357 N.W.2d 369, 370 (Minn.App.1984) (declining to rule on the constitutionality of a statute when the issue was not raised or ruled upon by the district court)."
State v. Samuelson, No. A11-326 (Minn.App. 2012), (unpublished opinion), 2012 WL 2873838 at * 2, (emphasis added), rev. denied, Nov. 20, 2012.
The Court of Appeals likewise declined to address Petitioner's "right to privacy" claim, holding that "it is another issue that was not raised to or ruled on by the district court." Id.2
All of the other arguments that Petitioner raised in his direct appeal were rejected on the merits, and the Minnesota Court of Appeals ultimately affirmed Petitioner's conviction and sentence. Id. at *5. The Minnesota Supreme Court summarily denied Petitioner's application for further for review on November 20, 2012, and the United States Supreme Court denied his petition for a writ of certiorari on June 17, 2013. Samuelson v. Minnesota, 133 S.Ct. 2833 (2013).
Petitioner's current habeas corpus petition was filed on November 5, 2013.3 The petition lists only a single ground for relief, which appears to be the same "void for vagueness" claim that Petitioner attempted to bring in his direct appeal. (Petition, p. 5.) However, Respondent has suggested that Petitioner might also be attempting to raise the "right to privacy" claim that he raised on direct appeal. Petitioner has not objected to this characterization of his petition, and the Court finds it to be reasonable.4 Therefore, even though the petition, on its face, appears to present only one ground for relief, the Court will assume that Petitioner is seeking habeas review of two of the claims raised in his direct appeal — (1) the "void for vagueness" claim, and (2) the "right to privacy" claim.
Respondent contends that neither of the claims presented in the current habeas corpus petition can be entertained and decided on the merits, because both of those claims have been procedurally defaulted. The Court agrees.
II. DISCUSSION
"Federal habeas courts reviewing the constitutionality of a state prisoner's conviction and sentence are guided by rules designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism. These rules include the doctrine of procedural default, under which a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.. . . [Citation omitted.] A state court's invocation of a procedural rule to deny a prisoner's claims precludes federal review of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed."
Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012) (emphasis added).
"A federal district court is precluded from substantively considering a habeas corpus claim that a state court has disposed of on independent and adequate non-federal grounds, including state procedural grounds." Clemons v. Luebbers, 381 F.3d 744, 750 (8th Cir. 2004), cert. denied, 546 U.S. 828 (2005). When a state appellate court has expressly declined to address a particular claim on the merits pursuant to a state procedural rule, the claim is "procedurally defaulted" for federal habeas corpus purposes. As the Eighth Circuit Court of Appeals explained in Hall v. Delo, 41 F.3d 1248, 1250 (8th Cir. 1994), "[a] federal claim has not been fairly presented to the state courts," and is therefore procedurally defaulted, "when the state court has declined to decide the federal claim on the merits because the petitioner violated a state procedural rule." See also McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997) ("a federal court may usually only consider `those claims which the petitioner has presented to the state courts in accordance with state procedural rules'") (quoting Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir.), cert. denied, 517 U.S. 1215 (1996)); Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir. 1992) ("[o]rdinarily, a federal court reviewing a state conviction in a 28 U.S.C. § 2254 proceeding may consider only those claims which the petitioner has presented to the state courts in accordance with state procedural rules").
A claim that has been procedurally defaulted in the state courts will not be entertained in a federal habeas corpus proceeding, unless the petitioner has shown "cause and prejudice" to excuse his procedural default, or, in the alternative, that there would be a "fundamental miscarriage of justice" if the federal court declined to consider the claim. Coleman v. Thompson, 501 U.S. 722, 750 (1991). The "fundamental miscarriage of justice" exception is available only upon a "showing, based on new evidence, that `a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Brownlow v. Groose, 66 F.3d 997, 999 (8th Cir. 1995), cert. denied, 516 U.S. 1161 (1996) (emphasis added), quoting Schlup v. Delo, 513 U.S. 298, 327 (1995). In other words, the petitioner cannot simply point to errors that allegedly occurred during the course of his criminal prosecution; he must instead offer some new evidence which affirmatively demonstrates that he plainly did not commit the criminal acts that he was accused of committing. See Cox v. Burger, 398 F.3d 1025, 1031 (8th Cir.) (successful demonstrations of actual innocence are "rare and limited," because the actual innocence exception is "permitted only for `truly persuasive demonstrations of actual innocence,' based on reliable new evidence which shows `it is more likely than not that no reasonable juror would have convicted [the petitioner] in light of the new evidence'"), cert. denied, 546 U.S. 844 (2005) (citations omitted).5
The rules governing procedural default have been summarized by the United States Supreme Court as follows:
"In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, 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 violations of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."
Coleman, 501 U.S. at 750.
In this case, the Minnesota Court of Appeals summarily rejected both of Petitioner's current habeas corpus claims, because Petitioner failed to raise those claims in accordance with applicable state procedural rules. More specifically, Petitioner's "void for vagueness" and "right to privacy" claims were found to be procedurally barred, because he had not previously raised them in the trial court. The Court of Appeals expressly refused to adjudicate either of those claims on the merits, because they had not been properly preserved for appellate review in the manner prescribed by Minnesota's state court procedural requirements. Because the Minnesota Court of Appeals found Petitioner's claims to be procedurally barred, they have been procedurally defaulted for federal habeas purposes.6
Petitioner does not deny that his vagueness and privacy claims were found to be procedurally barred, but he contends that the procedural rulings by the Minnesota Court of Appeals were erroneous. Petitioner contends that he did raise those claims in the trial court, and the Court of Appeals wrongly refused to adjudicate them on the merits. (See Petitioner's Memorandum in Support of Petitioner's Reply to Respondent's Answer, [Docket No. 16], pp. 5-12.7) This argument cannot be sustained, because a state court's application of a state procedural rule is not reviewable in a federal habeas corpus action.
It is well settled that "[a] federal court may not re-examine a state court's interpretation and application of state law." Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir. 1994). In Murray v. Hvass, 269 F.3d 896, 899 (8th Cir. 2001), cert. denied, 535 U.S. 935 (2002), the Eighth Circuit held that "it is not the province of a federal court to decide whether a matter ought to be considered procedurally defaulted under state law." This rule was reiterated in Owsley v. Bowers, 234 F.3d 1055, 1058 (8th Cir. 2000), cert. denied, 534 U.S. 1121 (2002). In Owsley, a state appellate court had ruled that a claim was not properly raised and preserved for direct appeal. The Eighth Circuit rejected the argument that the state court had erred, explaining that —
"We are obliged to respect the conclusion of the Missouri Supreme Court here. A federal court conducting habeas corpus review must ordinarily refrain from reviewing any issue that a state court has already found to be defaulted on an adequate and independent state-law basis."
Id. at 1058.
In May v. Iowa, 251 F.3d 713, 716 (8th Cir. 2001), the Eighth Circuit once again rejected a habeas petitioner's challenge to the validity of a state procedural bar, pointing out that "[w]e may not disturb a state court decision interpreting state law on habeas review . . . and thus we reject [the petitioner's] contention that he did not default his three ineffective assistance of counsel claims." In Clemons, 381 F.3d at 751, the Eighth Circuit again declared that "federal courts do not look at whether state courts have correctly applied their own procedural rules[;] [t]hey simply determine whether those procedural rules were applied to bar the claim." It is therefore clear that this Court cannot review and overturn the Minnesota Court of Appeals' determination that Petitioner's "void for vagueness" and "right of privacy" claims were barred by the state's procedural rules.
The only remaining issue to be resolved is whether Petitioner has shown cause and prejudice, or actual innocence, to excuse his procedural default. The Court finds that Petitioner is unable to satisfy either the cause and prejudice standard, or the actual innocence standard, with regard to his procedurally defaulted claims.
Petitioner has made no discernible effort to show any legally sufficient cause to excuse his procedural default, and the Court cannot independently identify any such cause. The only argument that Petitioner has offered to excuse his procedural default is that the Minnesota Court of Appeals misapplied the state's procedural rules. But that argument has already been rejected for the reasons discussed above. See Schleeper, 36 F.3d at 737 ("a state's misapplication of its own procedural rule is not cause for default"). Because Petitioner has failed to satisfy the cause component of the cause and prejudice requirement, it is unnecessary to separately consider the prejudice component. Ashker v. Class, 152 F.3d 863, 871 (8th Cir. 1998) (when petitioner "has not shown adequate cause to overcome the procedural bar . . . we need not consider the issue of actual prejudice"); Sweet v. Delo, 125 F.3d 1144, 1151 (8th Cir. 1997), cert. denied, 523 U.S. 1010 (1998) (same).
Petitioner also does not qualify for the "actual innocence" exception, because he has offered no new evidence to affirmatively demonstrate that he did not commit the crime for which he was convicted. To qualify for the actual innocence exception, Petitioner would have to present some compelling new evidence, which would conclusively establish that, in fact, he did not commit the acts that the state accused him of committing. See Cassell v. Norris, 103 F.3d 61, 62 (8th Cir. 1996) ("[f]or actual innocence to lift the procedural bar," a habeas petitioner "must show that it is more likely than not that, in light of new evidence, no reasonable juror would have convicted him"), cert. denied, 522 U.S. 857 (1997). However, Petitioner has not identified any new evidence showing that he did not violate the DANCO. Indeed, Petitioner does not dispute the factual basis for his conviction; he is challenging his conviction based solely on alleged legal error. See Sawyer, 505 U.S. at 340 ("the miscarriage of justice exception is concerned with actual as compared to legal innocence"). Again, Petitioner has offered no new evidence proving that he did not actually commit the acts for which he was convicted. Therefore, Petitioner's procedurally defaulted claims cannot be entertained under the "actual innocence" exception.
For the reasons discussed above, the Court concludes that (a) the claims for relief presented in Petitioner's current habeas corpus petition have been procedurally defaulted, and (b) Petitioner cannot overcome his procedural default under either the "cause and prejudice" exception, or the "actual innocence" exception. The Court will therefore recommend that this action be dismissed with prejudice, without reaching the merits of Petitioner's claims.8
III. CERTIFICATE OF APPEALABILITY
A § 2254 habeas corpus petitioner cannot appeal an adverse ruling on his petition unless he is granted a Certificate of Appealability, ("COA"). 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA cannot be granted, unless the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). To make such a showing, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. Daniel, 529 U.S. 473, 484 (2000).
In this case, the Court finds that it is highly unlikely that any other court, including the Eighth Circuit Court of Appeals, could decide Petitioner's claims any differently than they have been decided here. Petitioner has not identified, (and the Court cannot independently discern), anything novel, noteworthy or worrisome about this case that warrants appellate review. It is therefore recommended that Petitioner should not be granted a COA in this matter.
IV. RECOMMENDATION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that:
1. Petitioner's application for a writ of habeas corpus under 28 U.S.C. § 2254, (Docket No. 1), be DENIED;
2. This action be DISMISSED WITH PREJUDICE; and
3. Petitioner should NOT be granted a Certificate of Appealability.
