Turner v. Norris

Filing 10

RECOMMENDED DISPOSITION recommending the District Court dismiss 2 Petitioner's Petition for Writ of Habeas Corpus. Objections to R&R due by 1/12/2009. Signed by Magistrate Judge Beth Deere on 12/29/08. (hph)

I N THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION

S T E V IE TURNER V. Case No. 5:07CV00156 JLH/BD

PETITIONER

L A R R Y NORRIS, A r k a n s a s Department of Correction R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections:

R ESPO N D EN T

T h e following recommended disposition has been sent to Chief United States D istric t Judge J. Leon Holmes. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a sis for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: Clerk, United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 1

II.

P r o c e d u r a l History: P e titio n e r Stevie Turner, an inmate at the Arkansas Department of Correction

(" A D C " ), Jackson County Correctional Facility brings this petition for writ of habeas c o rp u s (docket entry #2) under 28 U.S.C. § 2254. In his petition, Petitioner claims inef fe ctiv e assistance of counsel and insufficient evidence to support his conviction. In h is response (#8), Respondent argues that Petitioner's claims are procedurally barred. Alternatively, Respondent argues Petitioner's claims lack merit. For the reasons set forth b e lo w , the Court recommends that the District Court dismiss the petition with prejudice. III. B a c k gro u n d : T h e charges against Petitioner arose from an incident where Kevin Hare returned to his truck and saw Petitioner jumping out of the cab. Petitioner began to walk away f ro m the truck, but Mr. Hare, joined by Eason Brown, followed him while calling for p o lic e assistance. Mr. Hare asked Petitioner what he had taken from the truck, but P e titio n e r denied having been in the truck. Then Petitioner told the men to "back off" or th e y would get shot. Petitioner was later apprehended. Petitioner was found guilty of breaking or entering, first-degree terroristic th re a te n in g , and aggravated robbery. Turner v. State, No. CACR 05-645, 2006 WL 1 7 5 6 8 5 2 , at *1 (June 28, 2006). Petitioner was sentenced as a habitual offender to a term o f 120 months in the ADC for each charge, with the sentences to be served concurrently. Petitioner filed a direct appeal with the Arkansas Court of Appeals claiming there was

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in s u f f ic ie n t evidence presented at trial to support his conviction. Id. The Court of A p p e a ls affirmed Petitioner's conviction. Id. at *4. Petitioner then filed a motion for post-conviction relief and an amended motion for p o s t-c o n v ic tio n relief under Arkansas Rule of Criminal Procedure 37. In the petition and a m e n d e d petition, Petitioner claimed his counsel was ineffective for failing: (1) to argue insufficient evidence to support the conviction on each of the charges; (2) to object to the S tate 's improperly amending a charge to conform to the evidence presented at trial; (3) to o b je c t that all counts of the charging information lacked certain elements, including the n a m e s of the victims; and (4) to request an instruction on a lesser-included offense. In its order denying Petitioner relief, the trial court noted that Petitioner had filed h is petition, amended petition, and motion for leave to file an amended petition on the s a m e day. (#2 at p. 39) The trial court held that Petitioner had filed the three pleadings s im u lta n e o u sly in order to circumvent the ten-page limit on Rule 37.1 petitions. The p e titio n was denied based on this procedural violation. (#2 at p. 39) The trial court did a d d re ss , however, the substantive issues raised by Petitioner in both the petition and a m e n d e d petition. (#2 at p. 39) The court denied Petitioner Rule 37 relief without a h e a rin g concluding: (1) Petitioner's counsel was not constitutionally ineffective; (2) the S ta te had proven all of the elements of the offenses beyond a reasonable doubt and, th e re f o re , Petitioner had suffered no prejudice; and (3) the charging document and

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d is c o v e ry provided to Petitioner by the State provided him with adequate notice of the c h a rg e s and the State's theories. (#2 at p. 39) P e titio n e r appealed the denial of post-conviction relief to the Arkansas Supreme C o u rt. Turner v. State, No. CR 06-1458, 2007 WL 417383, *1 (Feb. 8, 2007). The S u p re m e Court considered the appeal on Petitioner's motion for extension of time to file h is brief and a petition for writ of certiorari to complete the record on appeal. Id. The C o u rt determined that it did not need to consider Petitioner's motions because it was a p p a re n t that the Petitioner could not prevail on his appeal even if he were allowed to go f o rw a rd . Id. (citing Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999)). Applying th e standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), th e Court held that Petitioner's counsel was not ineffective. Id. at *3-4. IV. S ta n d a r d of Review: " W h e n 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 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).

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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 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 introduced at trial established guilt b e yo n d a reasonable doubt. Id. Instead, the Court must determine "whether, after v ie w 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, 319, 99 S.Ct. 2781, 2789 (1979) (emphasis original). V. P ro ce d u ra l Default: T h e Respondent contends that Petitioner's claims should be dismissed as p ro c e d u ra lly defaulted because he failed to properly present them to the state courts. See C o le m a n v. Thompson, 501 U.S. 722 (1991). While it is true that Petitioner failed to

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p ro p e rly present his claims to the trial court on his Rule 37 petition and to the Arkansas S u p r e m e Court on appeal, both courts went on to decide the issues on the merits. (#2 at p p . 39, 41-46) Accordingly, this Court will address Petitioner's claims on the merits. See Lannert v. Jones, 321 F.3d 747, 751 (8th Cir. 2003) (citing Sweet v. Delo, 125 F.3d 1 1 4 4 , 1150 (8th Cir. 1997) ("When a state court decides an issue on the merits despite a p o s s ib le procedural default, no independent and adequate state ground bars consideration o f that claim by a habeas court"); Hadley v. Caspari, 36 F.3d 51, 51 (8th Cir. 1994) (" C la im s presented in a habeas corpus petition will not be procedurally barred so long as the state appellate court has given at least cursory consideration to them.")). V I. S u fficien cy of the Evidence: The Arkansas Court of Appeal's opinion on Petitioner's insufficient evidence c laim is not contrary to federal law and its determination of the facts is not objectively u n re a so n a b le. When it reviewed Petitioner's case, the state court viewed the evidence in a light most favorable to the State and considered only the evidence that supported the v e rd ic t to determine whether the evidence supporting the verdict was substantial. Turner v . State, 2006 WL 1756852 at *2. When determining whether the evidence was su b sta n tial, the court evaluated whether it was "of sufficient force that it will compel a c o n c lu s io n one way or another and pass beyond suspicion and conjecture." Id. citing M u lke y v. State, 330 Ark. 113, 952 S.W.2d 149 (1997).

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T h e test applied by the state court, which is based on state law, does not contradict th e reasoning or holding of the United States Supreme Court in Jackson, supra. See M itc h e l l v. Esparza, 540 U.S. 12, 14, 124 S.Ct. 7, 10, (2003) (holding the state court need n o t cite to, or even be aware of, applicable United States Supreme Court opinions, as long as "neither 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 Court's decision regarding the sufficiency of the evidence was not "c o n trary 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. d e n ie d , 543 U.S. 1027, 125 S.Ct. 670 (2004). The Petitioner has not produced any clear a n d convincing evidence rebutting the Court's factual findings. To the contrary, the C o u rt's findings are supported by the record. After reviewing the trial transcript in a light most favorable to the prosecution, the C o u rt finds that a rational trier of fact could have found the essential elements of the

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c rim e s beyond a reasonable doubt. Jackson, 443 U.S. at 318-19. Accordingly, the P e titio n e r is not entitled to habeas relief on his sufficiency of the evidence claim. V II . In e ffe c tiv e Assistance of Counsel: P e titio n e r claims his counsel's performance was constitutionally deficient because sh e failed: (1) to object to the State prosecuting him on an uncharged offense; (2) to a r g u e insufficient evidence on the charge of aggravated robbery; (3) to move to dismiss th e charge of terroristic threatening; (4) to ask for a lesser included offense instruction; a n d (5) to move for directed verdict on the charge of breaking and entering. Petitioner raised similar claims of ineffective assistance of counsel in his Rule 37 p o s t-c o n v ic tio n petition.1 The trial court held that Petitioner's assertion that his counsel w a s ineffective for failing to argue sufficiency of the evidence was contrary to the events a t trial. (#2 at p. 39) Petitioner's trial counsel moved for directed verdict at the close of th e State's case and at the close of his case based on the State's failure to provide s u f f ic ie n t evidence on each of the elements of the charged offenses. Turner v. State, 2007 W L 417383 at *2. The trial court also held that "even if she had failed to move for a d ire c te d verdict, all the elements were proven beyond a reasonable doubt. Therefore, no

In his Rule 37 petition, Petitioner argued that his trial counsel was ineffective for f a ilin g to: (1) argue there was insufficient evidence to support the conviction on each of th e charges; (2) object to the State's improperly amending a charge to conform to the e v id e n c e presented at trial; (3) object that all counts of the charging information lacked c e rta in elements, including the names of the victims; and (4) request an instruction on a le s s e r- in c lu d e d offense. 8

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p re ju d ic e would have resulted." (#2 at p. 39) Finally, the trial court found that the c h a rg in g document and discovery provided the Petitioner and his attorney with "adequate n o tice of the nature of the charges and the State's theory of culpability." (#2 at p. 39) On appeal to the Arkansas Supreme Court, Petitioner again claimed ineffective a ss is ta n c e of trial counsel alleging that his counsel failed: (1) to seek a directed verdict b ase d on insufficient evidence; (2) to object to an amendment to the aggravated robbery c h a rg e ; (3) to object to the felony information; (4) to argue double jeopardy because the S ta te voluntarily dismissed one count of terroristic threatening; and (5) to request an in s tru c tio n on a lesser-included offense. The Arkansas Supreme Court set forth the Strickland standard and analyzed each o f Petitioner's claims. The Court found that many of the Petitioner's claims had no basis in law or in fact. Turner, 2007 WL 417383 at *2, *4. Further, the Court held that there w a s a presumption that the conduct of Petitioner's counsel fell within the range of re a so n a b le professional assistance, and that Petitioner had not shown a reasonable p r o b a b ility that the decision reached would have been different, absent the alleged errors, in order to rebut the presumption. Id. at *2-4. T h e Strickland test applied by the Arkansas Supreme Court is the test set out by th e United States Supreme Court. Petitioner does not contend the United States Supreme C o u r t has addressed a case with facts that are "materially indistinguishable" from those inv o lved here. Therefore, the Arkansas Supreme Court's decision denying Petitioner's

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c la im of ineffective assistance of counsel is not "contrary to" applicable United States S u p r e m e Court law under § 2254(d)(1). Further, the Petitioner has not produced any c le a r and convincing evidence rebutting the court's factual findings. The state courts' fin d ing s of fact and conclusions are imminently reasonable. Accordingly, the Court re c o m m e n d s that the District Court dismiss Petitioner's ineffective assistance of counsel c la im s . V I I I. C o n c lu s io n : T h e Court recommends the District Court dismiss Petitioner's petition for writ of h a b e as corpus (#2) with prejudice. D A T E D this 29th day of December, 2008.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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