Eddie Joe BUCKLEY, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee, 892 F.2d 715

BEAM, Circuit Judge. Eddie Joe Buckley appeals from a decision of the district court dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1982). We affirm. I. BACKGROUND Buckley was arrested at the age of nineteen for burglary and theft of jewelry valued at $75,000 from a Best Merchandise store. On June 23, 1983, he was convicted on both counts by a jury. The jury assessed punishment of twenty years for each count, and the judge, immediately after the verdicts were returned and the jury dismissed, imposed the sentences to run consecutively. Trial Transcript, vol. 2 at 296.

At the same time, the judge also advised Buckley of his right to appeal; Buckley’s only question was about credit for jail time already served. Trial Transcript, vol. 2 at 296-97. The next day, June 24, 1983, Buckley escaped from custody and remained at large throughout his appeal period. He was apprehended and committed to the Arkansas Department of Corrections on October 30, 1984. Buckley has since filed an array of motions for post-conviction relief. He first filed, on July 15, 1985, a pro se petition pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure.

The petition contained both a conclusory allegation of ineffective assistance of counsel at paragraph 19, Designated Clerk’s Record at 100, and a more elaborate allegation of ineffective assistance in the argument and conclusion section. Id. at 101. While the precise grounds for the allegation were not clear, the court found that Buckley alleged two claims for relief: ineffective assistance and double jeopardy. Designated Clerk’s Record at 119.

The court dismissed this petition on April 15, 1986, finding no merit in the double jeopardy allegation and that “the mere conclusiory (sic) allegation of ineffective assistance of counsel is without merit and entitles petitioner to no relief.” Id. Buckley filed a second petition, styled a Writ of Error Coram Nobis, on July 1, 1986. In this petition he alleged ineffective assistance of counsel based on counsel’s failure to object to a juror for cause, for failure to procure alibi witnesses, and for failure to perfect an appeal. Id. at 123-24.

The petition also stated that counsel had refused to appeal “since the judge stated that petitioner could not appeal.” Id. at 127. In addition, the petition alleged improper use of a coerced confession, prose-cutorial misconduct for threatening witnesses, denial of a fair and impartial trial, of due process and of equal protection, and abuse of discretion. Id. at 125-27.

The court dismissed this petition on November 10, 1986, finding that Arkansas Rule of Criminal Procedure 37.2 requires that all grounds for relief be raised in the original petition, and that “[djefendant’s second petition alleges essentially the same grounds and seeks the same relief as did his first petition.” Id. at 137. On February 6, 1986, Buckley filed the first of his federal habeas corpus petitions, alleging that counsel failed to perfect an appeal and improperly excused himself. Id. at 4. Upon the state’s motion to dismiss, the district court ruled that Buckley had exhausted his state remedies.

The court refused to dismiss and granted leave to amend. Id. at 51-52. Buckley filed an amended petition on January 12, 1987, alleging the following grounds: denial of effective assistance of counsel, use of a coerced confession, prose-cutorial misconduct, denial of a fair and impartial trial, denial of due process and equal protection, abuse of discretion and denial of the right to appeal. Id. at 56.

Buckley was appointed counsel on October 30, 1987, and filed a second amended petition on September 19, 1988, alleging ineffective assistance of counsel for failure to object to a juror for cause and for failure to move for a continuance to obtain alibi witnesses, use of an involuntary confession, and prosecutorial misconduct. Id. at 150-52.

A United States Magistrate dismissed this petition on October 28, 1988, since “none of the grounds presently being put forth by petitioner have been fairly presented to the state courts,” Id. at 190, and since petitioner could not show adequate cause for failing to present these grounds to the state courts. Id. at 191. This appeal followed. II. DISCUSSION In considering the dismissal of Buckley's petition on procedural grounds, it is important to note both the deference federal courts give to state courts in reviewing motions for collateral relief and the importance of state procedural rules. In Engle v.

Isaac, 456 U.S. 107, 127-28, 102 S.Ct. 1558, 1571-72, 71 L.Ed.2d 783 (1982), the Supreme Court discussed the costs of collateral review, emphasizing that the writ of habeas corpus undermines the finality of litigation, detracts from the prominence of the trial and its safeguards for the accused and frustrates society’s interest in punishment. The writ also imposes special costs on the federal system, since the states not only possess primary authority for enforcing the criminal law, but also “hold the initial responsibility for vindicating constitutional rights.” Id. at 128, 102 S.Ct. at 1572.

Moreover,, the Supreme Court has stressed the importance of state procedural rules and their relationship to these state interests, noting that “procedural rules serve vital purposes at trial, on appeal, and on state collateral attack.” Murray v. Carrier, 477 U.S. 478, 490, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986). These considerations underlie the framework used by the Eighth Circuit in its review of habeas corpus claims.

A federal court can consider the merits of a habeas corpus petition only when the prisoner has “ ‘fairly presented’ to the state courts the ‘substance’ of his [or her] federal habeas corpus claim.” Martin v. Solem, 801 F.2d 324, 330 (8th Cir.1986) (quoting Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) and citing Picard v. Connor, 404 U.S. 270, 276-78, 92 S.Ct. 509, 512-14, 30 L.Ed.2d 438 (1971)).

If the federal claim has not been presented to the state courts, it is procedurally barred in federal court and must be dismissed, unless the prisoner can show both adequate cause to excuse his failure to raise the claim in state court and actual prejudice resulting from failure to address the merits in federal court. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). Given a procedural default and no showing of cause and prejudice, the habeas corpus petition must be dismissed. A.

Procedural Default Buckley’s first petition filed in state court alleged ineffective assistance and double jeopardy. Because of Arkansas Rule of Criminal Procedure 37.2(b), the federal court can consider only those claims found in this first petition. The state circuit court dismissed the allegation of ineffective assistance as a “mere conclusiory (sic) allegation,” entitling petitioner to no relief. Designated Clerk’s Record at 119.

By contrast, Buckley’s second amended ha-beas petition filed by appointed counsel, contained two allegations of ineffective assistance—failure to object to a juror for cause and failure to move for a continuance—and other allegations concerning use of an involuntary confession and prosecuto-rial misconduct. The claims concerning the involuntary confession and prosecutorial misconduct were clearly not raised in the first state petition. Thus, we turn to Buckley’s ineffective assistance claim.

Buckley’s initial ineffective assistance claim, supra note 1, does not resemble the more specific claims of ineffective assistance alleged in his second amended habeas petition. The United States Supreme Court has held in Picard v.

Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1972) that, to be fairly presented, “the substance of a federal habeas corpus claim must first be presented to the state courts.” In Pi-card, for example, “[t]he claim that an indictment is invalid is not the substantial equivalent of a claim that it results in an unconstitutional discrimination.” Id. at 278, 92 S.Ct. at 513. Beyond the concluso-ry language of “ineffective assistance,” the same facts and legal theories are not at issue in Buckley’s various petitions.

For instance, Buckley’s second amended habeas petition alleges ineffective assistance based on failure to dismiss a juror for cause and failure to request a continuance to obtain alibi witnesses. These grounds were not presented to the state court, no matter how one construes Buckley’s initial Rule 37 petition, supra note 1. Ineffective assistance based upon failure to mount an appeal is not mentioned. We thus cannot say that Buckley fairly presented the substance of his ineffective assistance claim to the state court. In Gilmore v.

Armontrout, 861 F.2d 1061 (8th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989), we found that an initial ineffective assistance claim was not adequately presented for procedural purposes in state court. In the state court petition, Gilmore advanced the claim that trial counsel failed to pursue the testimony of potential alibi witnesses. But in the federal habeas petition, the ineffective assistance claim involved the prosecutor’s closing argument.

Id. at 1065 n. 8. “We do not think the nature of this claim is sufficiently similar to the alleged basis of ineffective assistance currently at issue to permit a conclusion that the latter claim was adequately presented in the state post-conviction appellate proceeding.” Id. Buckley’s federal ineffective assistance claim is no more similar to his state ineffective assistance claim than was Gilmore’s. Moreover, our finding that Buckley’s federal ineffective assistance claim was not fairly presented to the state court is consistent with the

interpretation of Arkansas Rule of Criminal Procedure 37.2 by the Arkansas Supreme Court. In Long v. State, 294 Ark. 362, 742 S.W.2d 942 (1988), the court found the allegations of a Rule 37 petition to be patently conclusory, and the petition to have been properly denied without an evidentiary hearing.

The court noted that if general, nonfactual assertions were sufficient under Rule 37, every prisoner would be entitled to an evidentiary hearing on any claim. “[I]f a movant under Rule 37 cannot allege grounds which show a factual basis for some entitlement to relief, he or she should not expect favorable action on the motion.” Id. 742 S.W.2d at 943. We find no error in the district court’s finding that the substance of Buckley’s federal ineffective assistance claim was not presented to the state court.

Nor were the claims concerning the involuntary confession and prosecutorial misconduct presented to the state court. We must then consider whether Buckley can show cause and prejudice for this procedural default. B. Cause For Default 1. Pro se status Buckley argues that his pro se status should excuse his failure to present his federal claims to the state court. We disagree. In Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir.1988), we found that pro se status is not cause for failure to present federal claims to a state court. And in Vasquez v.

Lockhart, 867 F.2d 1056 (8th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 2453, 104 L.Ed.2d 1007 (1989), we found that pro se status and unfamiliarity with the American language and court system did not constitute cause for the failure of Vasquez, a Mexican national, to present his federal claims to the state court. Id. at 1058. Thus, Buckley’s pro se status cannot excuse his failure to present his federal habeas claims to the state court. 2.

Ineffective Assistance of Counsel While we do not consider the merits of Buckley’s ineffective assistance claim, since it is procedurally barred, ineffective assistance may be cause for a procedural default. Murray, 477 U.S. at 488, 106 S.Ct. at 2645. We thus consider Buckley’s argument that he was denied effective assistance of counsel by reason of his counsel’s failure to perfect an appeal (the only ground for ineffective assistance Buckley has alleged that could constitute cause) to determine whether it can constitute cause for the procedural default.

Because of Buckley’s own actions in escaping from prison immediately after sentencing, Buckley’s ineffective assistance claim cannot provide cause for his procedural default. The United States Supreme Court has held that a prisoner who escapes during an appeal period loses the right to an appeal. “No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction.” Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970).

In Wayne v. Wyrick, 646 F.2d 1268 (8th Cir.1981), we held, relying on Molinaro, that a prisoner who was in an escape status during his appeal period could not maintain an ineffective assistance of counsel claim based on the failure of counsel to perfect an appeal. “The general rule is that a criminal defendant who by his escape removes himself from the court’s power and process and remains at large during the pendency of his appeal forfeits his right to appeal.” Wayne, 646 F.2d at 1270. See also Brinlee v. United States, 483 F.2d 925 (8th Cir.1973).

Thus, any ineffective assistance due to counsel’s failure to perfect an appeal during Buckley’s escape status cannot be cause for the procedural default. And, even if it could be, Buckley would still be unable to meet the prejudice test of Wainwright, for no prejudice results to Buckley from the failure to consider the merits of the claim. Because Buckley lost his right to institute an appeal or to maintain an appeal already started while in an escape status, he forfeited any ineffective assistance claim he may have had for failure to file the appeal.

Alternatively, as indicated, Buckley’s claim would fail on the merits for the same reason. Under the test for ineffective assistance in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), counsel’s conduct must fall below an objective standard of reasonableness to constitute ineffective assistance. But it clearly cannot be ineffective assistance of counsel to fail to do that which the prisoner has no right to do. We repeat, when Buckley escaped, he lost his right to appeal and any ineffective assistance claim he may have had based on his right to appeal.

See Wayne, 646 F.2d at 1271. Buckley’s ineffective assistance, thus, cannot excuse his procedural default. III. CONCLUSION For these reasons, we affirm the district court’s dismissal of Buckley’s second amended petition for writ of habeas corpus. .

Buckley’s petition stated, verbatim et literatim: Plaintiff was denied the effective assistance of counsel because appointed counsel shall con-tunue to represent a defendant until relieved by this Court, The Supreme Court, or Where a Trial is had, upon the failing of a written statement that the defendant, if convicted does not wish to appeal as here in after provided, At know time did Plaintiff release counsel or did Plaintiff understand any form of Law or sentence concerning what could happen if the Court found him in Double Jeopardy.

Where as a more effictive assistance of Legal counsel who had better under standing of the Law would have advised Plaintiff following a Trial conviction appointed counsel shall advise defendant of his Right to Appeal and of his right to counsel on Appeal if requested there after to do so. Counsel shall file a proper Motion for New Trial, and if the Motion is over ruled perfect The Appeal. His representation shall contunue until he is relieved by this Court of The Supreme Court. Designated Clerk’s Record at 101. . A.R.Cr.P. 37.2(

b) reads as follows: All grounds for relief available to a petitioner under this rule must be raised in his original petition unless the petition was denied without prejudice. Any ground not so raised or any ground finally adjudicated or intelligently and understandingly waived in the proceedings which resulted in the conviction or sentence, or in any other proceedings that the prisoner may have taken to secure relief from his conviction or sentence, may not be the basis for a subsequent petition. A.R.Cr.P. 37.2(b) (1989). .

We note that the federal court can consider the merits of a habeas corpus petition, upon procedural default, absent a showing of cause and prejudice, where "a constitutional violation has probably resulted in the conviction of one who is actually innocent_” Murray, 477 U.S. at 496, 106 S.Ct. at 2649. This is not, however, a normal inquiry, for the cause and prejudice test of Wainwright can be dispensed with only in an "extraordinary case.” Id. .

Because of Arkansas Rule of Criminal Procedure 37.2(b), which requires that all grounds for post-conviction relief be filed in the first Rule 37 petition, Buckley cannot be sent back to state court to allege his federal ineffective assistance claims there. As the district court found, “petitioner has exhausted available state remedies." Designated Clerk’s Record at 51. . It does not matter whether Buckley escaped before or after an appeal was filed. While the prisoners in Wayne and Molinaro escaped after an appeal had been filed, it makes no difference that Buckley had not yet filed an appeal.

Had Buckley’s counsel filed an appeal before Buckley had escaped, the appeal would have been dismissed because of the escape. Wayne, 646 F.2d at 1270. Nor does the motivation for the escape matter. Buckley argues essentially that he escaped because his counsel told him he would not file an appeal. Even if this story (unbelievable as it is given the time sequence of the escape and the trial transcript showing that the judge did in fact advise Buckley of his right to appeal) were true, Buckley’s motivation is irrelevant.

All escapes are motivated by some dissatisfaction with the legal system, presumably an arrest or conviction, and the courts should neither distinguish among motivations nor condone any of them. By escaping, for whatever reason, Buckley simply has lost his right to file or maintain an appeal and must abide the consequences. . We note that this is not a case which invokes an inquiry into the merits of Buckley’s actual innocence under Murray. See supra note 3.

We find in this case no constitutional violation which “has probably resulted in the conviction of one who is actually innocent.” Murray, All U.S. at 496, 106 S.Ct. at 2649. The Supreme Court has noted that a writ of habeas corpus should he granted absent a showing of cause, which we cannot find in this case, only “in an extraordinary case.” Id. This is not such a case.