Thomas v. Norris

Filing 13

MEMORANDUM OPINION AND ORDER dismissing, with prejudice, 1 petition for writ of habeas corpus in its entirety. Signed by Magistrate Judge Beth Deere on 11/7/08. (hph)

I N THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION RICHARD THOMAS PETITIONER

v.

C A S E NO.: 5:06CV00244 BD RESPONDENT

L A R R Y NORRIS Director, Arkansas Department of Correction

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 # 10). 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 : O n August 6, 2002, P e titio n e r was arrested and charged in Faulkner County, A rk a n sa s Circuit Court with: (1) manufacturing methamphetamine; (2) committing a f e lo n y while in possession of a firearm; (3) maintaining a drug premises within 1,000 feet o f a certified drug-free zone; (4) possessing drug paraphernalia with intent to manufacture m e th a m p h e ta m in e ; (5) possessing methamphetamine; (6) possessing drug paraphernalia; an d (7) possessing marijuana. (#7 at pp. 26-27) Petitioner moved to suppress evidence discovered during a search of his residence p r io r to his arrest. (#7 at p. 28) The trial court held a hearing on the motion to suppress

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o n August 18, 2003. One of the officers who conducted the search and made the arrest te stif ie d that he worked for the Conway Regional Drug Task Force, and that he and a n o th e r officer from the task force went to Petitioner's residence on August 6, 2002, to f o llo w up on information they had received about drug activity at the residence. The o f f ice rs were dressed in plain clothes and wore their badges around their necks. They did n o t display any firearms. The officer testified that when they knocked on the door, a child an sw ere d the door, followed by Petitioner's wife. The officer explained why they were th e re and, while they were talking, the Petitioner came to the door. The officer testified th a t he told Petitioner about the information the task force had received and requested p e rm is s io n to search the house. According to the officer, Petitioner consented to a search o f the residence and led the officers to a back bathroom where contraband was found. Petitioner testified that he consented to the search, but that the consent was c o e rc e d . (#12-2 at p. 17) He stated that the officers told him that if he consented it would b e "easier on [him]," and "they had a man in route to get a search warrant, and if they got the search warrant, of course, they would have to tear up the house." (#12-2 at p. 13) At the conclusion of the hearing, the Judge asked Petitioner's counsel for a d d itio n a l case law to support of the motion to suppress. (#12-2 at p. 24) On August 25, 2 0 0 6 , the trial court held a brief hearing at which Petitioner's counsel presented the trial c o u rt with additional case law. (#12-2 at p. 27) The following day, the trial court denied th e motion to suppress. (#7 at p. 29, #12-2 at p. 27) In announcing his ruling, the trial

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ju d g e stated that his decision turned on the credibility of the witnesses. He found that P etitio n er was not threatened, but rather that he consented to the search, and the court d e n ie d the motion to suppress. (#7 at p. 29) A f te r the trial court denied the motion to suppress, Petitioner entered a conditional p le a of guilty to the offenses of manufacturing a controlled substance, simultaneous p o ss e ss io n of drugs and firearms, possession of drug paraphernalia with intent to m a n u f ac tu re methamphetamine, and maintaining a drug premises within one thousand f e et of a drug-free zone. (#12-5 at p. 1) The remaining charges were nolle prossed. (#12-5 at p. 1) A t the plea hearing on November 6, 2003, the Court sentenced Petitioner to a total o f ten years in the Arkansas Department of Correction ("ADC") but released him on bond d u rin g the pendency of his appeal. (#7 at pp. 30-33, #12-3 at pp. 10-11) O n September 21, 2005, the Arkansas Court of Appeals affirmed the trial court's d e c is io n to deny the motion to suppress. Thomas v. State, CACR No. 04-195, 2005 WL 2 2 9 3 9 4 5 , *1 (Sept. 21, 2005). On October 12, 2005, the Court of Appeals issued a m a n d a te affirming the trial court and ordering the Petitioner to surrender immediately to th e Faulkner County Sheriff . (#7 at p. 41) O n December 12, 2005, Petitioner filed a timely petition with the trial court for p o s t-c o n v ic tio n relief under Arkansas Rule of Criminal Procedure 37. (#7 at p. 42) On M a rc h 7, 2006, the trial court denied the Rule 37 petition because Petitioner was not in

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c u sto d y at the time he filed his petition. (#7 at p. 51) Petitioner did not appeal from the tria l court's order. Petitioner filed a petition for writ of habeas corpus with this Court on September 2 2 , 2006. Respondent moved to dismiss the petition arguing that Petitioner is p ro c e d u ra lly barred from federal habeas relief due to the dismissal of his post-conviction m o tio n by the trial court. The Court denied Respondent's motion and ordered him to ad d ress the merits of the petition. (#11) Because the Court finds that none of Petitioner's claims entitles him to relief on th e merits, the exhaustion and procedural default issues need not be addressed. See T r u ss e ll v. Bowersox, 447 F.3d 588, 590-91 (8th Cir. 2006) cert. denied, 127 S.Ct. 583 (2 0 0 6 ) (because procedural default does not constitute a jurisdictional bar to federal h ab ea s review, a court may proceed to the merits in the interest of judicial economy); K h a a lid v. Bowersox, 259 F.3d 975, 978 (8th Cir. 2001) (declining to address "the c o m p le x itie s of the procedural bar issue" where the claim is more easily resolved on the m e rits ); 28 U.S.C. § 2254(b)(2) (permitting federal court to deny habeas petition on the m erits notwithstanding applicant's failure to exhaust state remedies). P e titio n e r seeks habeas relief on the ground that he was denied effective assistance o f counsel in violation of the Sixth and Fourteenth Amendments to the United States C o n s titu tio n . Respondent argues that Petitioner's counsel was effective. For the reasons s e t forth below, Petitioner is not entitled to habeas relief.

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II.

I n e ffe c tiv e Assistance of Counsel Claim: A. S ta n d a r d of Review

T h e deferential standards of 28 U.S.C. § 2254 are inapplicable when a federal h a b e a s court reaches a federal constitutional claim that was not adjudicated on the merits b y the state courts. In these cases, the federal habeas court conducts a de novo review of th e claim. Niederstadt v. Nixon, 465 F.3d 843 (8th Cir. 2006) (citing Pfau v. Ault, 409 F .3 d 933, 938-39 (8th Cir. 2005)). A petitioner "must state specific, particularized facts w h ic h entitle him or her to habeas corpus relief for each ground specified." Adams v. A r m o n tr o u t, 897 F.2d 332, 334 (8th Cir. 1990). T h e Sixth Amendment guarantees criminal defendants effective assistance of co u n sel at every stage of the proceeding. "That right is denied when a defense attorney's p e rf o rm a n c e falls below an objective standard of reasonableness and thereby prejudices th e defense." Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 4 (2003) (citing Wiggins v . Smith, 539 U.S. 510, 521 (2003) and Strickland v. Washington, 466 U.S. 668, 687 (19 8 4 )). Thus, in order to prevail on a habeas corpus claim of ineffective assistance of c o u n se l, a petitioner must show: (1) that trial counsel's performance was so deficient that it fell below an objective standard of the customary skill and diligence displayed by a re a s o n a b ly competent attorney; and (2) that there is a reasonable probability the outcome o f the trial would have been different but for the substandard performance of trial c o u n s e l. See Strickland, 466 U.S. at 687-94. Furthermore, "[j]udicial scrutiny of

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co u n sel's performance is highly deferential, indulging a strong presumption that counsel's c o n d u c t falls within the wide range of reasonable professional judgment." Bucklew v. L u e b b e r s , 436 F.3d 1010, 1016 (8th Cir. 2006) (citing Strickland, 466 U.S. at 689); see a ls o Middleton v. Roper, 455 F.3d 838, 845 (8th Cir. 2006). Stated another way, "[t]he S ix th Amendment guarantees reasonable competence, not perfect advocacy judged with th e benefit of hindsight." Yarborough, 540 U.S. at 8. In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985), the United States Supreme C o u rt held that the two-part Strickland test applies to challenges to guilty pleas based on in e f fe c tiv e assistance of counsel, and "to satisfy the `prejudice' requirement, the d e f e n d a n t must show that there is a reasonable probability that, but for counsel's errors, h e would not have pleaded guilty and would have insisted on going to trial." Id. at 58-59. B. F a ilu r e to Rely on Arkansas State Law

P e titio n e r claims that his trial counsel was ineffective because at the suppression h e a rin g counsel did not argue that, under the Arkansas Constitution, the officers who re q u e ste d permission to search his residence were obligated to advise him of his right to re f u se to consent to the search. (#1 at p. 4) In its opinion denying the Petitioner's direct a p p e a l, the Arkansas Court of Appeals mentioned trial counsel's failure to raise this a rg u m e n t stating: "[w]e recognize that State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2 0 0 4 ), holds that, under the Arkansas Constitution, a home dweller must be advised of a

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rig h t to refuse consent to search. However, in this instance, appellant did not invoke the A rk a n s a s Constitution in his motion to suppress." In spite of the Court of Appeals' statement, Petitioner's counsel was not in e f fe c tiv e for failing to raise the Arkansas Constitution argument at the suppression h e a rin g . As the Court of Appeals noted, Brown was not decided until 2004. The task f o rc e officers searched Petitioner's home August 6, 2002, and the trial court held the s u p p re ss io n hearing on August 18, 2003, more than six months before the Arkansas S u p r e m e Court decided Brown. Counsel's failure to anticipate a change in the law does n o t constitute ineffective assistance of counsel. See Parker v. Bowersox, 188 F.3d 923, 9 2 9 (8th Cir. 1999); Johnson v. Armontrout, 923 F.2d 107, 108 (8th Cir. 1991). C. F a ilu r e to Investigate

For his second ineffective assistance of counsel claim, Petitioner states that c o u n se l was ineffective for failing to investigate whether his residence was located w ith in 1000 feet of a drug free zone. Petitioner alleges his attorney was ineffective for n o t moving to dismiss the charge which, under Arkansas law, is a class "B" felony. Where the alleged error of counsel is a failure to advise the petitioner of a potential d e f e n se to the crime charged, the resolution of the "prejudice" inquiry will depend largely o n whether the affirmative defense likely would have succeeded at trial. Hill, 474 U.S. at 5 9 . In this case, Petitioner has not provided any evidence that his residence was in fact

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m o r e than 1000 feet from a drug-free zone in order to establish that the alleged defense w o u ld have succeeded at trial or on a motion to dismiss. Petitioner has also failed to allege that if counsel had correctly investigated and m o v e d to dismiss this class "B" felony charge, he would not have pleaded guilty and w o u ld have insisted on going to trial on all seven charges. Petitioner faced a maximum sen tenc e of life in prison on each class "Y" felony, a maximum sentence of twenty years o n each Class "B" felony, a maximum sentence of ten years on each class "C" felony, and a maximum sentence of one year on the class "A" misdemeanor. As a result of the plea, P e titio n e r received a sentence of ten years on the class "Y" and class "B" felonies to run c o n c u rre n tly, and the remaining charges were nolle prossed. Petitioner does not allege any special circumstances to support the conclusion that h e placed particular emphasis on this class "B" charge when he decided to plead guilty. Id. at 60. Under the circumstances, Petitioner has not established that he was prejudiced b y his lawyer's failure to investigate the charge of maintaining a drug premises within 1 0 0 0 feet of a drug-free zone. D. F a i lu r e to Advise

F o r his final claim of ineffective assistance of counsel, Petitioner claims his counsel misadvised him about the offenses to which he was pleading guilty and failed to c o rre c t the error. Petitioner claims that it was his understanding that he would be s e n te n c ed to thirty months, and that he was not pleading guilty conditionally to felonies

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th a t fell under Arkansas's law requiring that he serve seventy percent of his sentence b e f o re becoming eligible for parole. See ARK. CODE ANN. § 16-93-611. (#1 at p. 7) Petitioner claims that, but for his counsel's errors and omissions, he would not have p le a d e d guilty. A guilty plea is valid if it is a "voluntary and intelligent choice" for the defendant, g iv e n the alternatives available to him. Brewer v. State of Iowa, 19 F.3d 1248, 1250 (8th C ir. 1994) (citing North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164 (1970)). When a defendant receives advice from his counsel and chooses to plead guilty, the v o lu n ta rin e ss and intelligence of the plea depend on whether counsel's advice was " w ith in the range of competence demanded of attorneys in criminal cases." Id. (quoting H ill v. Lockhart, 474 U.S. at 56). In this case, Petitioner testified to his understanding of the plea at the plea hearing. Petitioner testified that he was fully apprised of the charges to which he was pleading and th e range of punishment for each charge. (#12-3 at pp. 3-4) Further, Petitioner has a c k n o w led g e d signing a Conditional Guilty Plea Statement that listed the offenses to w h ich he was pleading and the maximum punishment for each offense. (#12-3 at p. 7) Petitioner stated that he had reviewed the statement with his lawyer before signing it, and d id not have any questions about the statement which his lawyer had not answered. (#123 at p. 7)

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P e titio n e r testified that he understood that under the plea agreement the State w o u ld recommend he be sentenced to ten years on counts two, three, and four, with the sen tenc es to run concurrently, and to a ten-year suspended sentence on count one. (#12-3 a t pp. 4-5) The judgment and commitment order entered by the trial court was consistent w ith the State's recommendation and with what Petitioner stated at the hearing he u n d e rs to o d the deal to be after discussing it with his attorney. Further, Petitioner's counsel questioned him at the hearing about the voluntariness o f hie plea. Petitioner stated that no one had threatened him or promised him anything to s e c u re his guilty plea. (#12-3 at p. 6) Finally, he testified that he was satisfied with the rep rese n tatio n his lawyer had provided him. (#12-3 at p. 7) Counsel's advice was within the range of competence demanded of a criminal d e f e n s e lawyer. As set forth above, Petitioner was initially charged with seven counts, tw o of which carried maximum life sentences, and another two of which carried maximum sentences of twenty years in prison. As a result of the plea agreement, three of th e seven counts were nolle prossed, and Petitioner received ten-year sentences on the o th e r counts, to run concurrently. Under the circumstances, counsel's advice to accept th e plea, even though it required pleading to felonies subject to the seventy-percent rule, w a s within the range of competence. T o the extent Petitioner is alleging that his lawyer gave him erroneous advice a b o u t his parole eligibility, the United States Supreme Court has declined to decide

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w h e th e r erroneous advice as to parole eligibility may be deemed constitutionally in e f fe c tiv e assistance of counsel. See Hill, 474 U.S. at 60. Based on the lack of Supreme C o u rt precedent, the Court of Appeals for the Eighth Circuit has declined to overturn state c o u rt opinions holding that failure to provide a criminal defendant with information about A rk a n sa s's seventy-percent parole rule does not constitute ineffective assistance of c o u n se l. See Ridling v. Norris, No. 07-1852, 2008 WL 4499148 (8th Cir. Oct. 8, 2008); Buchheit v. Norris, 459 F.3d 849 (8th Cir. 2006). Accordingly, counsel's failure to inform Petitioner that, if he pleaded guilty to th e se charges, he would be required to serve seventy-percent of his sentence does not c o n stitu te ineffective assistance of counsel. III. C o n c lu s io n : P e titio n e r has no sustainable grounds for habeas corpus relief. Accordingly, this 2 8 U.S.C. § 2254 petition for writ of habeas corpus (docket entry #1) is DISMISSED, in its entirety, with prejudice. IT IS SO ORDERED this 7th day of November, 2008.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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