Lawson v. Norris

Filing 29

MEMORANDUM OPINION AND ORDER dismissing, with prejudice, 1 Petitioner's petition for writ of habeas corpus. Signed by Magistrate Judge Beth Deere on 10/16/08. (hph) (Docket entry modified on 12/2/2008 to correct the file date.) (thd)

I N THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION J A M E S LAWSON A D C # 110084 VS. NO. 5:06CV00152-BD PETITIONER

L A R R Y NORRIS, Director, Arkansas Dept. of Correction

R ESPO N D EN T

M E M O R A N D U M OPINION AND ORDER A ll parties consented to disposition of this case by a Magistrate Judge (docket e n try # 17). For the reasons that follow, Petitioner's petition for writ of habeas corpus (# 1 ) is dismissed with prejudice. I. B a c k gro u n d : P e titio n e r James Lawson was arrested and charged with possessing cocaine with in te n t to deliver and maintaining a drug premises. The arrest was made after a traffic stop th a t was prompted by information provided to the police by Petitioner's live-in girlfriend. See Lawson v. State, 89 Ark. App. 77, 80-1, 200 S.W.3d 459, 464 (2004). Petitioner m o v e d to suppress evidence of drugs found in his vehicle and in his girlfriend's home, w h e re he was staying. At the suppression hearing, the officer who made the traffic stop te stif ie d that he stopped Petitioner after seeing the car Petitioner was driving cross the d o u b le yellow line and encroach into the opposite lane. (Respondent's Exhibit A at 76-

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7 7 ) After Petitioner was stopped, two other officers appeared at the scene and asked P etitio n er if they could search his car. (Respondent's Exhibit A at 108) The officers te stif ie d that Petitioner consented to a search of his car. (Respondent's Exhibit A at pp. 1 0 8 , 150) The officers testified they found a large quantity of crack cocaine in a plastic b a g g ie under the front passenger seat. (Respondent's Exhibit A at pp. 111, 150) After d is c o v e rin g the crack cocaine, the officers sought and obtained a warrant to search the g irlfrien d 's house. The officers testified they found additional cocaine in the girlfriend's h o u s e when they executed the warrant. (Respondent's Exhibit A at pp. 45-47) A t the suppression hearing, Petitioner's girlfriend testified on his behalf. She s ta te d that she had contacted the officer and complained to him about Petitioner because s h e and Petitioner had been fighting. (Respondent's Exhibit A at p. 158) She stated that s h e placed the baggie of crack cocaine under the seat of Petitioner's vehicle at the s u g g e s tio n of one of the officers so that he would be locked up and out of her life. (Respondent's Exhibit A at p. 165) The trial court denied Petitioner's motion to suppress b e c a u s e it did not find Petitioner's girlfriend to be a credible witness. After the trial court denied the motion to suppress, Petitioner entered a conditional p lea of guilty to possession of cocaine with intent to deliver and was sentenced to twenty yea rs in the Arkansas Department of Correction ("ADC") with an additional five years s u s p e n d e d . (Respondent's Exhibit A at p. 42) The charge of maintaining a drug

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p r e m is e s , which was based on evidence obtained with the search warrant, was nolle p r o s s e d . (Respondent's Exhibit A at p. 48) P e titio n e r conditioned his plea on appellate review of the trial court's order d e n yin g his motion to suppress. (Respondent's Exhibit A at pp. 40-41) On appeal, P e titio n e r argued: (1) police conducted an illegal pretextual stop; (2) police engaged in o u tra g e o u s conduct; and (3) the circuit judge was misled when he issued the warrant to s e a rc h the house. The Arkansas Court of Appeals affirmed the trial court's order denying P e titio n e r's motion to suppress. See Lawson v. State, 89 Ark. App. 77, 84, 200 S.W.3d 4 5 9 , 464 (2004). Petitioner filed a petition for post-conviction relief under Arkansas Rule of C rim in a l Procedure 37 alleging ineffective assistance of counsel. (#2 at p. 100) The c irc u it court denied Petitioner's Rule 37 petition. (#2 at pp. 108-09) Petitioner appealed f ro m the circuit court's order, but the appeal was dismissed after Petitioner failed to lodge th e appellate record within ninety days, as required by Arkansas Rule of Appellate P ro c e d u re - Criminal 4(a). Lawson v. State, No. CR 06-212, 2006 WL 880269 at *1 (A p ril 6, 2006). Petitioner filed a motion for rule on the clerk with the Arkansas Supreme C o u rt seeking permission to file a belated record. The motion was denied. Id. at *2. Petitioner raises the same arguments in this petition that he raised with the Court of A p p ea ls but adds an additional argument that there was insufficient evidence to support th e conviction. Respondent argues that Petitioner's argument that evidence should have

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b e e n suppressed because the traffic stop was pretextual is procedurally barred because it w a s not raised by Petitioner as a federal constitutional claim in the state courts. Alternatively, Respondent argues that both of Petitioner's Fourth Amendment arguments a re barred by the United States Supreme Court's decision in Stone v. Powell, 428 U.S. 4 6 5 . Respondent also asserts that Petitioner's argument regarding the search warrant is m o o t and that his sufficiency of the evidence argument is procedurally barred. II. F o u r th Amendment: R e s p o n d e n t argues that Petitioner's Fourth Amendment claim, i.e., that the trial c o u rt should have granted his motion to suppress the evidence police found when s e a rc h in g his car, is procedurally barred because the Petitioner relied on a state rule of c rim in a l procedure and cases interpreting the Arkansas Constitution, and not the Fourth A m e n d m e n t, in presenting his argument to suppress to the state courts. Before seeking federal habeas review, a state prisoner must first fairly present the su b sta n c e of each claim to each appropriate state court, thereby alerting those courts to th e federal nature of his claims and giving the state courts an opportunity to pass upon a n d correct any constitutional errors. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1 3 4 9 (2004); see 28 U.S.C. § 2254(b) and (c). "[A] federal habeas petitioner's claims m u s t rely on the same factual and legal bases relied on in state court." Interiano v. D o r m ir e , 471 F.3d 854, 856 (8th Cir. 2006) (citing Winfield v. Roper, 460 F.3d 1026, 1 0 3 4 (8th Cir. 2006); Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir. 2005)).

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In this case, Petitioner fairly presented his Fourth Amendment claim to the state c o u rts. Appellant's main argument in his direct appeal to the Arkansas Court of Appeals w a s that the trial court erred in denying his motion to suppress because the traffic stop w a s a pretext for a search and arrest. Id. at 82. In his brief, Petitioner discussed at length a n Arkansas Supreme Court case which discussed a United States Supreme Court, Fourth A m e n d m e n t case. See State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002) (citing W h r e n v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769 (1996)). Petitioner argued that, under Sullivan, the issue was whether he would have been arrested but-for the p re te x tu a l stop, search and seizure. Id. The Court of Appeals acknowledged that P e titio n e r presented a Fourth Amendment claim. Lawson, 89 Ark. App. at 82. The Court h e ld that, "a pretextual stop does not violate federal constitutional law or the Arkansas C o n s titu tio n " and the trial court did not err in denying the motion to suppress. Id. (citing Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417 (1996); Whren v. United States, 517 U.S. 8 0 6 , 116 S.Ct. 1769 (1996); State v. Harmon, 353 Ark. 568, 113 S.W.3d 75 (2003)) Accordingly, Petitioner's Fourth Amendment claim is not procedurally defaulted. A lte rn a tiv e ly, Respondent contends that Petitioner's Fourth Amendment argument is barred by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976). In Stone v. Powell, the U n ite d States Supreme Court held that, where a state prisoner has been afforded "an o p p o rtu n ity for full and fair litigation of a Fourth Amendment claim, [he] may not be g ra n te d federal habeas corpus relief on the ground that evidence obtained in an

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u n c o n stitu tio n a l search or seizure was introduced at his trial." Stone, 428 U.S. at 494. The Eighth Circuit, in Willett v. Lockhart, 37 F.3d 1265, 1273 (8th Cir. 1994) (en banc), se t out a two-part test to determine whether an opportunity to litigate a Fourth A m e n d m e n t claim in state court was "full and fair." A state court Fourth Amendment c laim is fully and fairly litigated, and thus barred from federal habeas review, unless: (1) the state provided no procedure by which the petitioner could raise his or her Fourth A m e n d m e n t claim, or (2) the petitioner was foreclosed from using that procedure because o f an unconscionable breakdown in the system. Id. When reviewing a Fourth Amendment claim, a federal habeas court is not required to conduct a hearing. Id. at 1270-71. Additionally, the reviewing court should abstain f ro m review of the state court records to determine whether the state court's factual f in d in g s are supported by the record. Id. at 1270. The Fourth Amendment claim may be b a rr e d even where the state court erred in deciding the legal merits of the claim. Id. at 1 2 6 8 ; see also Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997). In this case, Petitioner, represented by counsel, raised his Fourth Amendment c la im with the trial court through a pretrial motion to suppress. The trial court held an e v id e n tia ry hearing on the motion to suppress, and the Petitioner was given the o p p o rtu n ity to present witnesses and make arguments. (Respondent's Exhibit A) The tria l court ruled on the merits of Petitioner's Fourth Amendment claim, and Petitioner

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a p p e a le d that ruling in his direct appeal to the Arkansas Court of Appeals.1 Lawson, 89 A rk . App. at 82. The Court of Appeals reviewed the trial court's ruling and affirmed. Id. a t 84-85. Arkansas provided a procedure by which the Petitioner could raise his Fourth A m e n d m e n t claim, and he used that procedure. Consequently, this Court cannot review P e titio n e r' s "illegal pretextual stop" claim. Stone, 428 U.S. at 494. III. D u e Process: A s his second ground for relief, Petitioner argues that the conduct of the officers in c o n sp irin g with his girlfriend to "frame" him "is repugnant to the principles of f u n d a m e n tal fairness created and maintained by the Fifth and Fourteenth Amendments to th e U.S. Constitution." (#2 at p. 7) Respondent counters that the state courts reasonably a d ju d ic a te d this claim. "When a claim has been adjudicated on the merits in state court, habeas relief is w arran ted only if the state court proceeding resulted in: (1) a decision that was contrary to , or involved an unreasonable application of, clearly established Federal law, as d e ter m in e d by the Supreme Court; or (2) a decision that was based on an unreasonable d eterm inatio n of the facts in light of the evidence presented in the State court p ro c e ed in g ." Bucklew v. Luebbers, 436 F.3d 1010, 1015 (8th Cir. 2006) (quoting 28

Ordinarily, a guilty plea waives a Fourth Amendment claim based on an allegedly ille g a l search and seizure. Smith v. United States, 876 F.2d 655, 657 (8th Cir. 1989) (w a iv e r includes claims regarding search and seizure), cert. denied, 493 U.S. 869 (1989). In Arkansas, however, a defendant may enter a conditional guilty plea, preserving his rig h t to appeal the denial of a pre-trial motion to suppress. Ark. R. Civ. P. 24.3(b). 7

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U .S .C . § 2254(d)(1) and (2)); see also Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2 4 5 6 , 2462 (2005). A state court decision is "contrary to" federal law if the state court "arrives at a c o n c lu s io n opposite to that reached by the [United States Supreme] Court on a question of law or if the state court decides a case differently than the [United States Supreme] Court h a s on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 4121 3 , 120 S.Ct. 1495 (2000). A decision is "an unreasonable application" of federal law "if the state court iden tifies the correct governing legal principle from the [United States Supreme] Court's d e c is io n s but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "In other words, it is not enough for us to conclude that, in our in d e p e n d e n t judgment, we would have applied federal law differently from the state c o u rt; the state court's application must have been objectively unreasonable." Rousan v. R o p e r, 436 F.3d 951, 956 (8th Cir. 2006) (citation omitted). In addition, in a federal habeas proceeding, a state court's factual findings are e n title d to a presumption of correctness, absent procedural error. Those findings may be s e t aside "only if they are not fairly supported by the record." Simmons v. Luebbers, 299 F .3 d 929, 942 (8th Cir. 2002) (quoting Purkett v. Elem., 514 U.S. 765, 769, 115 S.Ct. 1 7 6 9 (1995) and Middleton v. Roper, 455 F.3d 838, 845 (8th Cir. 2006)).

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P e titio n e r makes the same due process claim in this petition that he made to the A rk a n sa s Court of Appeals. The Court of Appeals addressed Petitioner's argument that th e officers had reason to believe that his vehicle contained drugs only because they had c o n s p ir e d with his girlfriend to plant the drugs. Petitioner argued prosecution under these c irc u m s ta n c es violated his due process rights. The Court held that whether to believe P e titio n e r's girlfriend's testimony that officers encouraged her to plant the drugs or to b e lie v e the officers' testimony that Petitioner's girlfriend merely provided information th a t Petitioner would be delivering the drugs the next day was a credibility issue to be d e te rm in e d by the trial court. Lawson, 89 Ark. App. at 85. Accordingly, the Court of A p p e a ls held that Petitioner's argument was "foreclosed by the trial court's credibility f in d in g [ ]" that Petitioner's girlfriend was not a credible witness at trial. Id. The Court of Appeals' decision is not an unreasonable application of federal law. There was evidence in the record to support the Court of Appeals' decision and the trial c o u rt's factual findings. Accordingly, Petitioner is not entitled to habeas relief on his due p ro c e s s claim. IV . S e a r c h Warrant: P e titio n e r argues that the circuit judge who issued the warrant to search his g irlf rie n d 's house was misled because the affidavit and testimony submitted in support of th e search warrant contained false statements and material omissions. The Court of A p p e a ls found this argument to be moot because the charges related to evidence found in

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th e house pursuant to the search warrant were nolle prossed. The Court of Appeals c o n c lu d e d that a judgment on the validity of the warrant would have no effect on P e titio n e r. Under the "case-or-controversy" requirement in Article III, § 2, of the United S ta te s Constitution, "[t]he parties must continue to have a personal stake in the outcome o f the lawsuit." Lewis v. Continental Bank Corp., 494 U.S. 472, 477-478, 110 S.Ct. 1249, 1 2 5 4 (1990). This means that, throughout the litigation, the plaintiff "must have suffered, o r be threatened with, an actual injury traceable to the defendant and likely to be re d re ss e d by a favorable judicial decision." Id. at 477. In this case, Petitioner was not c o n v ic te d or sentenced on any charges related to evidence found pursuant to the search w a rra n t. All charges related to that evidence were nolle prossed. Petitioner has not su f f e re d injury related to the allegedly invalid warrant and cannot allege that he will s u f f e r any adverse consequences related to the search in the future. Accordingly, P e titio n e r's search warrant claim is moot. V. S u f fic ie n c y of the Evidence: F in a lly, Petitioner argues there is insufficient evidence to support his conviction. R e sp o n d e n t contends Petitioner procedurally defaulted this argument because he did not ra is e a sufficiency of the evidence claim with the state courts. Habeas relief is available to a petitioner after he or she "has exhausted the re m e d ies available in the courts of the State." 28 U.S.C. § 2254 (b)(1)(A). In order to

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e x h a u st, the petitioner must "use the State's established appellate review procedures." Armstrong v. Iowa, 418 F.3d 924, 925 (8th Cir. 2005) (citing O'Sullivan v. Boerckel, 526 U .S . 838, 845, 119 S.Ct. 1728 (1999)). This requires state prisoners to "give the state c o u rts one full opportunity to resolve any constitutional issues by invoking one complete ro u n d of the State's established appellate review process." O'Sullivan, 526 U.S. at 845. In this case, Petitioner entered a conditional plea of guilty reserving only the right to appeal an adverse determination on his pretrial motion to suppress evidence. A c c o rd in g ly, Plaintiff could not bring a sufficiency of the evidence claim on direct a p p e al. See ARK. R. APP. P. CRIM. 1(a); see also Frette v. City of Springdale, 331 Ark. 1 0 3 , 107-08, 959 S.W.2d 734, 736 (1998) (court could not reach the merits of appellant's su f f icie n c y of the evidence claim because appellant waived his right to appeal on this g rou n d when he entered a conditional guilty plea under Ark. R. Crim. P. 24.3(b)). P e titio n e r filed a petition for post-conviction relief with the circuit court under A rk a n sa s Rule of Criminal Procedure 37. The only issue Petitioner raised in the petition, h o w e v e r, was ineffective assistance of counsel. The circuit court denied Petitioner relief, a n d Petitioner appealed from the circuit court's order. The appeal, however, was d is m is s e d after Petitioner failed to lodge the appellate record within ninety days as re q u ire d by Arkansas Rule of Appellate Procedure - Criminal 4(a). Petitioner sought p e rm is s io n from the clerk of the Arkansas Supreme Court to file a belated record,

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h o w e v e r, the motion was denied. Lawson v. State, No. CR 06-212, 2006 WL 880269 (A p ril 6, 2006). Petitioner has not raised, and now cannot raise, a sufficiency of the evidence claim in the state courts. Accordingly, Petitioner's claim is procedurally defaulted unless he can e sta b lis h "cause for the default and actual prejudice as a result of the alleged violation of f e d era l law, or demonstrate that failure to consider the claims will result in a fundamental m is c a rria g e of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1 9 9 1 ). A. C a u s e for Default and Prejudice

The cause and prejudice standard applies to procedural defaults on appeal as well a s at trial. Murray v. Carrier, 477 U.S. 478, 491, 106 S.Ct. 2639 (1986). Under this s ta n d a rd , a petitioner must establish cause by showing that some objective factor external to the defense impeded his efforts to comply with the State's procedural rule. Murray, 4 7 7 U.S. at 488. Petitioner claims that the circuit court and the Arkansas Supreme Court prevented h im from complying with the State's procedural rules, because, even though he was p ro c e ed in g in forma pauperis on appeal of the circuit court's denial of his Rule 37 p e titio n , the courts refused to provide him with a free transcript of the proceedings in o rd e r for him to perfect his appeal. The Eighth Circuit Court of Appeals has held that a s ta te can constitutionally deny an indigent prisoner a free trial transcript unless the

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p e titio n e r can show that the issues on appeal are not frivolous and that the transcript is re q u ire d to decide the issues. See Smith v. Lockhart, 882 F.2d 331 (8th Cir. 1989); U n ited States v. Lewis, 605 F.2d 379, 380 (8th Cir. 1979). In this case, Petitioner has not d e m o n s tr a te d that he made such a showing to the state courts. Thus, the state courts' f a ilu re to provide a transcript is not "interference by officials" sufficient to constitute " c a u se " for Petitioner's procedural default. P e titio n e r also argues that counsel was ineffective for failing to raise an e n tra p m e n t argument at the suppression hearing and this failure caused his default. Ineffective assistance of counsel which prevents the petitioner from raising a claim in state court is "cause" for a procedural default under Murray, 477 U.S. at 488. The e x h a u stio n doctrine requires that a petitioner present an ineffective assistance claim in state court, as an independent claim, before he uses it in a federal habeas court to e s ta b lis h "cause" for his state procedural default. Id. at 489. In this case, Petitioner ra is e d an ineffective assistance of counsel claim with the trial court in his petition for p o s t-c o n v ic tio n relief under Rule 37. The circuit court, however, rejected the claim. Petitioner failed to perfect an appeal from the circuit court's order. Consequently, P e titio n e r has not successfully established ineffective assistance of his trial counsel, and h a s not fully exhausted his ineffective assistance of counsel claim in order to establish c a u s e for his procedural default. Taylor v. Bowersox, 329 F.3d 963, 971 (8th Cir. 2003).

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B e c au s e Petitioner has not established cause for his failure to raise the sufficiency o f the evidence claim with the state courts, it is not necessary to reach the question of p r e ju d ic e . B. M is c a rr ia g e of Justice

P e titio n e r may also overcome procedural default by showing that failure to hear his P e titio n would result in a miscarriage of justice. To establish a miscarriage of justice, P e titio n e r must show that, based on new evidence, a constitutional violation has resulted in the conviction of someone who is actually innocent. Pitts v. Norris, 85 F.3d 348, 350 (8 th Cir. 1996). Petitioner claims innocence but does not offer any new evidence that w o u ld support a finding of actual innocence. Consequently, Petitioner has not established m is c a rria g e of justice, and his sufficiency of the evidence claim is procedurally barred. V I. C o n c lu s io n : F o r the foregoing reasons, Petitioner's petition for writ of habeas corpus (#1) is d is m is s e d with prejudice. IT IS SO ORDERED this 16th day of October, 2008.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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