Masiker v. Payne

Filing 13

RECOMMENDATION recommending 1 Masiker's petition be dismissed, all requested relief be denied, judgment be entered for Payne, and a certificate of appealability be denied. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Patricia S. Harris on 06/04/2024. (llg)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

AARON SCOTT MASIKER
v.

PETITIONER

NO. 4:23-cv-01215-KGB-PSH

DEXTER PAYNE

RESPONDENT

RECOMMENDATION
INSTRUCTIONS

The following Recommendation has been sent to United States
District Judge Kristine G. Baker. You may file written objections to all or
part of this Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your objection, and
(2) be received by the Clerk of this Court within fourteen (14) days of this
Recommendation. By not objecting, you may waive the right to appeal
questions of fact.

DISPOSITION
In this case, filed pursuant to 28 U.S.C. 2254, petitioner Aaron Scott
Masiker (“Masiker”) challenges his guilty plea. His challenge is premised on
claims that he was never provided discovery, his right to a speedy trial was
violated, his plea was involuntary because he suffers from a mental defect
and was never apprised of his legal rights, and his trial attorney was
ineffective. It is recommended that this case be dismissed because
Masiker’s claims are procedurally barred from federal court review.
The record reflects that Masiker was charged in an Arkansas state
trial court with aggravated robbery and theft for having robbed a gas
station. Prior to trial, he underwent an examination to determine his
criminal responsibility at the time of the offenses and his fitness to proceed
to trial. A psychologist concluded that Masiker did not have a mental
disease or defect at the time of the offenses and was fit to procced to trial.
Masiker did not object to the psychologist’s conclusions.
In June of 2023, Masiker entered a negotiated plea of guilty to
robbery and theft of property. As a part of his plea, he signed a plea
agreement. Respondent Dexter Payne (“Payne”) summarized some of the
relevant terms of the agreement, terms that include the following:

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... Masiker acknowledged that he had received a copy of the
information and understood the charges against him. ... He
acknowledged that his counsel had explained the nature of the
charges against him, answered all of his questions, and that he
had no complaints about counsel’s representation. ... He also
acknowledged that by pleading guilty he was giving up his “right
to a public and speedy trial by jury.” ...
Moreover, he acknowledged that he did “not suffer from
any mental disease or defect” and that he was “of sound mind
and fully [understood]” that he was pleading guilty. ... Masiker
acknowledged that he was not “threatened, coerced,
pressured, or intimidate[d] in any way by anyone, and no force
of any kind [was] used against [him] to get [him] to plead guilty
to any offense.” ... He also reviewed the sentence
recommendation, discussed it with counsel, and was “willing to
plead guilty and accept the recommendation.” ...
See Docket Entry 9 at CM/ECF 3. At the plea hearing, Masiker
acknowledged, inter alia, that he committed the criminal offenses as
alleged, understood the rights he was waiving by pleading guilty, and had
not been threatened or intimidated into pleading guilty.
Masiker was sentenced to the custody of the Arkansas Division of
Correction (“ADC”). He did not appeal any aspect of his guilty plea or
sentence, and he never filed a petition for post-conviction relief pursuant
to Arkansas Rule of Criminal Procedure 37 (“Rule 37”).1

Arkansas Rule of Appellate Procedure-Criminal 1(a) provides that there is no
direct appeal from a guilty plea, although there are exceptions. See Canada v. State,
2014 Ark. 336, 439 S.W.3d 42 (2014). Arkansas Rule of Criminal Procedure 37.2 provides
that a Rule 37 petition must be filed within ninety days of the entry of judgment.
1

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In December of 2023, Masiker began this case by filing the petition at
bar. He raised several intertwined claims in the petition. In claim one, he
alleged that he was never provided discovery and therefore did not know
the evidence against him, only saw his attorney at court appearances, and
was not prosecuted within what he represented to be the twelve month
statute of limitations. In claim two, Masiker alleged that he was tricked,
and otherwise threatened, into pleading guilty and failed to receive the
benefit of what he characterized as the “first offenders act.” See Docket
Entry 1 at CM/ECF 6. In claim three, Masiker alleged that his trial attorney
was ineffective because she failed to meet with him prior to trial and was
part of a “deal with the prosecutor” to obtain his guilty plea. See Docket
Entry 1 at CM/ECF 8. In claim four, Masiker alleged that he suffers from a
mental illness which requires prescription medication and, at times, inpatient hospitalization, and the state trial court failed to thoroughly
evaluate and/or take into consideration his mental condition before
accepting his guilty plea.2
Masiker also represented in the petition that he was confined at the White
County Detention Facility in Searcy, Arkansas. In two separate, subsequently entered
Orders, he was notified of his responsibility to comply with, inter alia, Local Rule
5.5(c)(2), which provides, in part, that a pro se litigant must promptly notify the Clerk
of the Court and the other parties of any change in the litigant’s address. Local Rule
5.5(c)(2) also provides that a case can be dismissed without prejudice if any
communication from the Court to a pro se litigant is not responded to within thirty
days.
2

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Payne filed a response to the petition. In the response, Payne
maintained that Masiker’s petition should be dismissed because his claims
are procedurally barred from federal court review, were waived by his
guilty plea, or are otherwise without merit.
The undersigned briefly reviewed Payne’s response, then entered an
Order giving Masiker up to, and including, April 19, 2024, to file a reply to
the response. The Order was sent to Masiker at the address he provided
the Clerk of the Court (“Clerk”) at the commencement of this case, i.e.,
the White County Detention Facility in Searcy, Arkansas. The envelope
containing the Order was subsequently returned marked “Return To
Sender, Unclaimed, Unable To Forward.” See Docket Entry 11.
The undersigned eventually determined that Masiker is now in the
custody of the ADC, being housed at the Grimes Unit. Although Masiker
failed to comply with Local Rule 5.5(c)(2), the undersigned accorded him
another opportunity to file a reply to Payne’s response. Masiker was given
up to, and including, May 23, 2024, to do so.3
May 23, 2024, has now come and gone. Masiker has filed nothing in
reply to Payne’s response.

The Clerk was directed to, and did in fact, send Masiker copies of Payne’s
response and the Order soliciting a reply. The copies were sent to Masiker at his Grimes
Unit address.
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A federal court cannot consider a claim if the petitioner failed to first
present it to the state courts in accordance with the state’s procedural
rules. See Shinn v. Ramirez, 596 U.S. 366 (2022). A claim not so presented
may nevertheless be considered in one of two instances. First, it can be
considered if the petitioner can show cause for his procedural default and
prejudice. See Burford v. Payne, No. 4:20-cv-00398-KGB-JJV, 2020 WL
8299805 (E.D. Ark. July 15, 2020), report and recommendation adopted,
No. 4:20-cv-00398-KGB, 2021 WL 280880 (E.D. Ark. Jan. 27, 2021). Second,
the claim can be considered if the petitioner can show that the failure to
consider the claim will result in a fundamental miscarriage of justice, that
is, a constitutional violation has resulted in the conviction of one who is
actually innocent. See Id.
Here, Masiker did not present, and pursue to a final resolution, the
claims at bar in the state courts of Arkansas.4 He could not have raised the
claims in a direct appeal of his guilty plea, and there is no record of him
having filed a timely Rule 37 petition raising the claims. Thus, he has
procedurally defaulted the claims, and the only question is whether his
default can now be excused.

Although Masiker raised the mental competency issue prior to his guilty plea, he
did not pursue the issue to a conclusion in the trial court and never presented the claim
to the state appellate courts in any manner.
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Liberally construing Masiker’s pro se petition, he appears to maintain
that his procedural default should be excused because he has been
proceeding without the assistance of counsel and has no knowledge of how
the courts operate, officials at the White County Detention Facility
provided no assistance to him, and his trial attorney was ineffective.
Masiker’s apparent assertions are unavailing for the reasons that follow.
First, Masiker has been proceeding without the assistance of counsel,
and the undersigned accepts that he has no knowledge of how the courts
operate. Those facts, though, do not excuse his procedural default. “[A]
petitioner's pro se status, lack of education, below-average intelligence,
or any unfamiliarity with the intricacies of the law or legal procedure are
not sufficiently external to constitute cause excusing a procedural
default.” See Boyd v. Kelley, No. 5:17-cv-00325-DPM-JTK, 2019 WL
2866499, 5 (E.D. Ark. May 6, 2019), report and recommendation adopted,
No. 5:17-cv-00325-DPM, 2019 WL 2864750 (E.D. Ark. July 2, 2019).
Second, the undersigned accepts Masiker’s representation that
officials at the White County Detention Facility provided no assistance to
him in presenting his claims to the state courts. Their failure to do so,
though, cannot excuse his procedural default. The undersigned knows of
no authority requiring jail officials to assist a petitioner in presenting his
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claims to the state courts, and there is no evidence that the officials’
failure to assist him was “some objective factor” impeding the exercise of
his rights. See Id. (showing of cause ordinarily turns on evidence that some
objective factor external to the defense impeded petitioner’s efforts to
comply with state’s procedural rules.)
Last, before ineffective assistance of counsel can be used to establish
cause for a procedural default, ineffective assistance of counsel must first
be presented to the state courts as an independent Sixth Amendment
claim. See Lane v. Kelley, No. 5:16-cv-00355-DPM-JTR, 2017 WL 5473925
(E.D. Ark. Nov. 14, 2017), report and recommendation adopted, No. 5:16cv-00355-DPM, 2017 WL 6542748 (E.D. Ark. Dec. 21, 2017). Masiker never
presented an ineffective assistance of counsel claim to the state courts as
an independent Sixth Amendment claim, and he cannot now use ineffective
assistance of counsel to establish cause for his default.
Alternatively, Martinez v. Ryan, 566 U.S. 1 (2012), provides a means
for excusing a procedural default when there is no counsel in an “initialreview collateral proceeding.”5 The Martinez exception, though, is of no
benefit to Masiker in this instance.

In Martinez v. Ryan, 566 U.S. 1 (2012), the United States Supreme Court held
that ineffective assistance of post-conviction counsel can excuse the procedural default
of a substantial claim of ineffective assistance of trial counsel.
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“Federal district courts in Arkansas have consistently held that a
habeas petitioner ... must, at a minimum, initiate a ‘state collateral review
proceeding’ by filing a Rule 37 petition with the state trial court before he
can rely on Martinez to excuse his procedural default.” See Lane v. Kelley,
5:16-cv-00355-DPM-JTR, 2017 WL 5473925, 4 (E.D. Ark. Nov. 14, 2017),
report and recommendation adopted, 5:16-cv-00355-DPM, 2017 WL
6542748 (E.D. Ark. Dec. 21, 2017). Here, Masiker never initiated a state
collateral review proceeding by filing a Rule 37 petition.
Notwithstanding the foregoing, a showing of actual innocence can
excuse a procedural default. The petitioner must show that a constitutional
violation has probably resulted in the conviction of one who is actually
innocent. See Schlup v. Delo, 513 U.S. 298 (1995). Masiker has failed to
make that showing as he has not offered “new evidence that affirmatively
demonstrates that he is innocent of the crime[s] for which he was
convicted.” See Abdi v. Hatch, 450 F.3d 334, 338 (2006).
Accordingly, the undersigned finds that Masiker failed to give the
state courts of Arkansas an opportunity to address the claims at bar. He
cannot show cause for his procedural default, and he cannot show that a
fundamental miscarriage of justice will occur if the claims are not
considered. The claims are procedurally barred from federal court review.
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It is therefore recommended that Masiker’s petition be dismissed, all
requested relief be denied, and judgment be entered for Payne. In
accordance with Rule 11(a) of the Rules Governing Section 2254 Cases in
the United States District Courts, a certificate of appealability should also
be denied. Masiker cannot make a “substantial showing of the denial of a
constitutional right.” See 28 U.S.C. 2253(c)(2).
DATED this 4th day of June, 2024.

__________________________________
UNITED STATES MAGISTRATE JUDGE

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