S. Ct. Civ. No. 2011-0026

The Superior Court's order denying a petition for writ of habeas corpus is affirmed. This application follows a protracted filing history multiple motions and duplicate petitions for the writ after petitioner's conviction in 1978 for first degree murder and weapons offenses. This seventh petition recycles issues and arguments already reviewed. Under the abuse of the writ doctrine, a court is not required to consider a subsequent habeas corpus petition if the claim could have been raised earlier unless the petitioner can show “cause and prejudice,” that a fundamental miscarriage of justice would result from a failure to entertain the claim a successive petition would be considered. Here the People have met their the burden of pleading abuse of the writ. The prior appeals and writ history demonstrate that claims based on improper jury instructions are precluded from being re-litigated here. Petitioner's claim that the Superior Court erred in declining to address the proffered statement of an alleged eyewitness, was raised in a 2006 petition, and he did not appeal the denial of that petition. The Superior Court did err when it construed the petitioner's new evidence claim in this habeas corpus petition as a motion for a new trial and dismissed it as untimely under its Rule 135. A local rule may not be used to deny a litigant's due process or substantive rights, and there is no time limit under the habeas statute or case law restricting a petitioner from raising a claim of new evidence. However, this claim will not be reviewed because petitioner has not provided this Court with the affidavits necessary to evaluate this claim of new evidence, as was his burden. The Superior Court's March 25, 2011 Order denying the petitioner's seventh petition for writ of habeas corpus is affirmed.