Gardner v. Norris

Filing 40

MEMORANDUM OPINION AND ORDER dismissing, with prejudice, 1 Petitioner's petition for writ of habeas corpus. Signed by Magistrate Judge Beth Deere on 11/19/08. (hph)

I N THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION W A L L A C E A. GARDNER A D C #110784 v. C A S E NO.: 5:07CV00024 BD RESPONDENT P E T IT IO N E R

L A R R Y NORRIS, Director, Arkansas Department o f 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 # 13). 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 September 29, 2004, Petitioner was convicted by a Pulaski County Circuit C o u rt jury of capital murder and aggravated robbery. He was sentenced to life in the A rk a n sa s Department of Correction ("ADC"). Counsel for Petitioner filed a direct appeal o f the conviction and sentences. (Respondent's Exhibit B) The sole argument raised in the direct appeal was whether there was sufficient evidence to prove aggravated robbery a s the underlying felony supporting the capital murder conviction. (Respondent's Exhibit B at p. v) On January 5, 2006, the Arkansas Supreme Court affirmed Petitioner's

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c o n v ic tio n , and on February 9, 2006, the Court denied a petition for rehearing. Gardner v. S ta te , 364 Ark. 506, 221 S.W.3d 339 (2006). O n April 14, 2006, Petitioner filed a "motion for appointment of counsel for c o lla te ra l post-conviction relief to vacate judgment and commitment order" with the C irc u it Court. (#1 at p. 160) Petitioner raised the following claims in the motion: (1) the tria l court lacked jurisdiction; (2) violations of the Arkansas and United States c o n stitu tio n s ; (3) judicial misconduct; (4) prosecutorial misconduct; and (5) ineffective a ss is ta n c e of counsel. (#1 at pp. 149-159) The Circuit Court construed the motion as one f o r post-conviction relief under Arkansas Rule of Criminal Procedure 37 and denied the p e titio n in an order filed on September 20, 2006, because it was filed outside the time a llo w e d under Rule 37.2(c). (#1 at p. 160) Petitioner did not appeal from the Circuit C o u rt's order. P e titio n e r filed this habeas petition on February 6, 2007, claiming: (1) violations of his equal protection and due process rights; (2) ineffective assistance of counsel; (3) unlawful arrest in violation of the Fourth Amendment of the United States C o n s titu tio n ; and (4) improper admission of "false evidence" at trial. Petitioner filed a f irs t amended petition on August 6, 2007 (#23) adding a claim of ineffective assistance o f appellate counsel. Petitioner also filed a second amended petition on October 17, 2007 (# 2 7 ) adding a claim that he was required to answer to charges that were not submitted to a grand jury and were not included in a grand jury indictment, in violation of the

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A rk a n sa s Constitution. Respondent argues all of the Petitioner's claims are either p ro c e d u ra lly defaulted, barred by the statute of limitations, or lack merit. II. P ro ce d u ra l Default: H a b e as 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 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)). State remedies are not fully exhausted if a p e titio n e r "has the right under the law of the State to raise, by any available procedure, th e question presented," but fails to do so. Id. § 2254(c). State prisoners must "give the s ta te courts one full opportunity to resolve any constitutional issues by invoking one c o m p le te round of the State's established appellate review process." O'Sullivan, 526 U.S. a t 845. In this case, Petitioner filed a Rule 37 petition with the state trial court. The trial c o u rt denied the petition because it was not filed within sixty days of the date the appeal w as dismissed as required by Arkansas Rule of Criminal Procedure 37.2(c). Petitioner's f a ilu re to seek relief within the time limits set under Rule 37 is a jurisdictional defect. Mims v. State, 360 Ark. 96, 199 SW.3d 681 (2004). Petitioner did not appeal from the C o u rt's order denying his Rule 37 petition.

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P e titio n e r has not exhausted his state court remedies as to any claim other than his su ff icien cy of the evidence claim. Accordingly, all of the claims Petitioner raises are p ro c e d u ra lly defaulted unless he can establish "cause for the default and actual prejudice a s a result of the alleged violation of federal law, or demonstrate that failure to consider th e claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 5 0 1 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991). A. Cause for Default T h e 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 the trial court's failure to appoint counsel, the trial court's failure to hold a hearing, and ineffective assistance of trial and appellate counsel caused him to p ro c e d u ra lly default his Rule 37 petition. "[I]nterference by officials that makes c o m p lia n c e with the State's procedural rule impracticable." may amount to cause. McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454 (1991) (internal quotations o m itted). The facts of this case, however, do not support an argument that the trial court ca u sed the default. The trial court acted within its discretion when it denied Petitioner's m o tio n to appoint counsel. See Coleman v. Thompson, 501 U.S. at 752 ("There is no

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c o n stitu tio n a l right to an attorney in state post-conviction proceedings"); see also Hardin v . State, 350 Ark. 299, 86 S.W.3d 384 (2002) (per curiam). P e titio n e r also argues that the Circuit Court's failure to hold a hearing on his Rule 3 7 petition was cause for his default. The Arkansas Supreme Court has interpreted Rule 3 7 .3 (a ) to require an evidentiary hearing in a post-conviction proceeding unless the files a n d the records of the case conclusively show that the prisoner is entitled to no relief. See W a lke r v. State, 367 Ark. 523, 529, 241 S.W.3d 734, 739 (2006) (per curiam); Sanders v. S ta te , 352 Ark. 16, 25, 98 S.W.3d 35, 41 (2003). An Arkansas trial court has discretion, u n d e r Rule 37.3(a), to decide whether the files or records are sufficient to sustain the c o u rt's findings without a hearing. Id. In this case, the trial court acted within its d iscretio n when it denied Petitioner a hearing on his Rule 37 motion because the court d eterm ined on the face of the motion that it was untimely. Accordingly, the trial court a c ted within its discretion by dismissing the petition without holding a hearing, and its d e c isio n is not cause for Petitioner's default. F in a lly, Petitioner claims that ineffective assistance of trial and appellate counsel c a u se d him to procedurally default his Rule 37 petition. Ineffective assistance of counsel w h ich prevents the petitioner from raising a claim in state court is "cause" for a p roc ed u ral default under Murray, 477 U.S. at 488. The exhaustion doctrine requires, h o w e v e r, that a petitioner present an ineffective assistance claim in state court, as an in d e p e n d e n t claim, before using it in a federal habeas court to establish "cause" for his

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s ta te procedural default. Id. at 489. Petitioner raised ineffective assistance of counsel c la im s with the trial court in his Rule 37 petition. The trial court, however, rejected the p e titio n because it was untimely, and Petitioner did not appeal from the trial court's order. Consequently, Petitioner has not successfully established ineffective assistance of trial or a p p e lla te counsel, and has not fully exhausted his ineffective assistance of counsel claims in order to establish cause for his procedural default. Taylor v. Bowersox, 329 F.3d 963, 9 7 1 (8th Cir. 2003). Because Petitioner has not established cause for his failure to raise h is claims with the state courts, it is not necessary to reach the question of prejudice. McCleskey v. Zant, 499 U.S. at 502. B. M is c a rr ia g e of Justice P e titio n e r may overcome procedural default also 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). This exception is concerned only with claims of actual innocence, not le g a l innocence. Id. A claim of actual innocence requires that petitioner "support his a lle g a tio n of constitutional error with new reliable evidence . . . ." Id. (quoting Schlup v. D e lo , 513 U.S. 298, 324, 115 S.Ct. 851, 865 (1995)). Actual innocence may be e s ta b l is h e d by a credible declaration of guilt by another, a trustworthy eyewitness a c c o u n t, or exculpatory scientific evidence. Id.

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P e titio n e r claims innocence throughout his petition; however, he does not offer any n e w evidence that would support a finding of actual innocence. All of the evidence o f f ere d by Petitioner in support of his innocence claim was available to him at the time of tria l. Consequently, Petitioner has not established a miscarriage of justice, and his claims a re procedurally barred. I I I. S u f fic ie n c y of the Evidence: T h e only claim Petitioner raises in his Petition that is not procedurally barred is his su f f icie n c y of the evidence claim.1 "When a claim has been adjudicated on the merits in state court, habeas relief is warranted only if the state court proceeding resulted in: (1) a d e c isio n that was contrary to, or involved an unreasonable application of, clearly e sta b lis h e d Federal law, as determined by the Supreme Court; or (2) a decision that was b a se d on an unreasonable determination of the facts in light of the evidence presented in th e State court proceeding." Bucklew v. Luebbers, 436 F.3d 1010, 1015 (8th Cir. 2006) (q u o tin g 28 U.S.C. § 2254(d)(1) and (2)); see also Rompilla v. Beard, 545 U.S. 374, 380, 1 2 5 S.Ct. 2456, 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

Petitioner does not explicitly claim insufficient evidence as a ground for relief in h is petition. He does claim, however, that the State did not meet its burden of proving ea ch element of the crime charged beyond a reasonable doubt. (#1 at p. 30) The Court c o n s tru e s this as a sufficiency of the evidence claim. 7

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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 th e state court identifies the correct governing legal principle from the [United States S u p r e m e ] Court's decisions but unreasonably applies that principle to the facts of the p ris o n e r's case." Williams, 529 U.S. at 413. In assessing a habeas petition claiming insufficient evidence to support a state c o u rt conviction, the scope of federal review is limited. Sera v. Norris, 400 F.3d 538, 543 (8 th Cir. 2005) (quoting Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003)). It is n o t relevant whether this Court believes that evidence produced at trial established guilt b e yo n d a reasonable doubt. Id. Instead, the Court must determine "whether, after v iew in g the evidence in the light most favorable to the prosecution, any rational trier of f a ct could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781 (1979). The Arkansas Supreme Court's opinion on the insufficient evidence claim raised b y Petitioner in his direct appeal is not contrary to federal law and the Court's d eterm inatio n of the facts is not objectively unreasonable. When it reviewed Petitioner's c a se , the Court viewed the evidence in a light most favorable to the State and considered o n ly the evidence that supported the verdict to determine whether the evidence supporting th e verdict was substantial. Gardner v. State, 364 Ark. at 512. When determining

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w h e th e r the evidence was substantial, the Court evaluated whether it was "of sufficient f o rc e and character to compel reasonable minds to reach a conclusion and pass beyond s u s p ic io n and conjecture." Id. citing Jones v. State, 357 Ark. 545, 182 S.W.3d 485 (2 0 0 4 ). The test applied by the Court, which is based on state law, does not contradict the re a so n in g or holding of the United States Supreme Court in Jackson, supra. See Mitchell v . Esparza, 540 U.S. 12, 14, 124 S.Ct. 7, 10, (2003) (holding the state court need not cite to , or even be aware of, applicable United States Supreme Court opinions, as long as "n eith er the reasoning nor the result of the state-court decision contradicts them"). F u r th e r, Petitioner does not contend the United States Supreme Court has addressed a c a s e with facts that are "materially indistinguishable" from those involved here. Therefore, the Arkansas Supreme Court's decision regarding the sufficiency of the ev iden ce was not "contrary to" applicable United States Supreme Court law under § 2254(d)(1). " A state court decision involves `an unreasonable determination of the facts in lig h t of the evidence presented in the state court proceedings' only if it is shown that the s ta te court's presumptively correct factual findings are rebutted by `clear and convincing e v id e n c e' and do not enjoy support in the record." Sera, 400 F.3d at 543 (quoting 28 U .S .C . § 2254(e)(1); Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir.2004), cert. denied, 5 4 3 U.S. 1027, 125 S.Ct. 670 (2004). The Petitioner has not produced any clear and

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co n v incin g evidence rebutting the Court's factual findings. To the contrary, the Court's f in d in g s are supported by the record. After reviewing the trial transcript in a light most f a v o ra b le to the prosecution, the Court finds that a rational trier of fact could have found th e essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 3181 9 . Accordingly, the Petitioner is not entitled to habeas relief on his sufficiency of the e v id e n c e claim. IV . 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 19th day of November, 2008.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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