McDonald v. Norris

Filing 20

RECOMMENDED DISPOSITION recommending that the District Court dismiss 1 Petition for Writ of Habeas Corpus with prejudice. Objections to R&R due by 6/24/2009. Signed by Magistrate Judge Beth Deere on 6/10/09. (hph)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION J I M McDONALD v. C A S E NO.: 5:07CV00162 SWW/BD R ESPO N DEN T PETITIONER

L A R R Y NORRIS, Director, Arkansas 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:

T h e following recommended disposition has been sent to United States District J u d g e Susan Webber Wright. 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 s is 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 s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 1

II.

B ackground: J im McDonald, an Arkansas Department of Correction ("ADC") inmate, brings

th is petition for writ of habeas corpus (docket entry #1) under 28 U.S.C. § 2254. Petitioner pled guilty to the rape of his minor daughter in Carroll County Circuit Court. McDonald v. State, 364 Ark. 491, 192, 221 S.W.3d 349, 350 (2006). After a hearing, a ju ry sentenced Petitioner to life in prison. Id. Petitioner's counsel immediately moved th e trial court for a reduction of the sentence arguing that the sentence was the result of p a s s io n or prejudice. (#11-3 at p. 84) The trial court asked Petitioner's counsel to file a w ritte n motion. In the written motion, Petitioner claimed that, under Ark. Code Ann. § 16-89-130(c)(5), he was entitled to a new trial because the verdict was against the law a n d evidence. (#11-5 at pp. 1-2) Citing Ark. Code Ann. § 5-4-103(b)(1), Petitioner f u rth e r claimed that, because he entered a guilty plea, the Court, and not the jury, should h a v e fixed his punishment. (#11-5 at pp. 1-2) The trial court denied the motion. McDonald, 364 Ark. at 493. O n direct appeal, Petitioner's counsel filed a timely no-merit brief under Anders v. C a lifo rn ia , 386 U.S. 738 (1967) and Rule 4-3(j)(1) of the Arkansas Supreme Court. Id. at 4 9 2 . In response, Petitioner filed a pro se brief alleging: (1) the trial court erred in failing to follow the directives of Ark. R. Crim. P. 24.5; (2) the prosecutor and defense attorney e rre d by referring to the sentencing range as including "life without parole" instead of

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merely "life;" and (3) the judge erred by giving a "hung jury" instruction. McDonald, 364 A rk . at 497. The Arkansas Supreme Court considered the Anders brief and the errors raised by P e titio n e r in his pro se brief and affirmed Petitioner's conviction and sentence. Id. The C o u rt held the trial court did not abuse its discretion by denying the motion to reduce the P e titio n e r's sentence because the jury heard sufficient evidence to support the verdict and it did not "appear to be the result of passion or prejudice." Addressing the Petitioner's p ro se brief, the Court noted that the trial court did fail to follow Ark. R. Crim P. 24.5 w h e n it accepted the plea, and that the attorneys had inaccurately referred to "life without p a ro le ." However, because neither claim was raised by the Petitioner at trial, the Court d id not reach the merits of these claims on appeal. Id. (citing Standridge v. State, 357 A rk . 105, 161 S.W.3d 815 (2004)). Finally, the Arkansas Supreme Court concluded that, b e c a u s e Petitioner's counsel had objected to the trial court's "hung jury" instruction and th e judge had retracted the instruction and had given a proper instruction approved by P e titio n e r's counsel, the improper instruction was not a valid basis for reversal. The Petitioner filed a timely petition for post-conviction relief with the trial court u n d e r Arkansas Rule of Criminal Procedure Rule 37.1. McDonald v. State, No. CR 061 0 6 0 , 2006 WL 3034635, *1 (October 26, 2006). The trial court denied the petition and p e titio n e r filed a timely notice of appeal with the Arkansas Supreme Court. Id. The A rk a n sa s Supreme Court dismissed Petitioner's appeal by per curiam order, however,

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when he failed to tender a record to the Court within ninety days, as required by Arkansas R u le of Appellate Procedure-Civil 5(a) as applied through Arkansas Rule of Appellate P ro c e d u re - Criminal 4(a). Id. In this petition, Petitioner claims his sentence constitutes cruel and unusual p u n is h m e n t in violation of the Eighth Amendment of the United States Constitution and th a t his guilty plea was not knowing and voluntary. (#1 at pp. 2, 7) The Respondent c o n te n d s that Petitioner's claims are barred by procedural default. For the reasons that f o llo w , the Court recommends that the District Court dismiss Petitioner's petition. III. P r o c e d u r a l Default: F e d e ra l habeas relief is available only on the ground that a person is in custody "in v io la tio n of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2 2 5 4 (a ). Before seeking federal habeas review, a state prisoner must first fairly present th e substance of each claim to each appropriate state court, thereby alerting those courts to the federal nature of his claims and giving those courts an opportunity to pass upon and c o rre c t any constitutional errors. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347 (2 0 0 4 ); see also 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)). Claims in a f e d e ra l habeas petition not presented in the state court proceedings and for which there is

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no remaining state court remedy are defaulted, and a habeas petitioner's default will be e x c u s e d only if he can "demonstrate cause for the default and actual prejudice as a result o f the alleged violation of federal law, or demonstrate that failure to consider the claims w ill result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 7 2 2 , 750, 111 S.Ct. 2546, 2565 (1991). A. E ig h th Amendment

T o fairly present a federal claim to a state court, a petitioner must have referred to " a specific federal constitutional right, a particular constitutional provision, a federal c o n s titu tio n a l case, or a state case raising a pertinent federal constitutional issue" in his c la im before the state courts. Ford v. Norris, 364 F.3d 916, 919 (8th Cir. 2004). In this c a s e , Petitioner's counsel objected at trial to the verdict claiming it was the result of p a s s io n or prejudice. In his post-trial motion, Petitioner cited Ark. Code Ann. § 16-891 3 0 and Ark. Code Ann. § 5-4-103 and claimed he was entitled to a new trial or to be s e n te n c e d by the judge. Petitioner did not, however, claim in his post-trial motion that the s e n te n c e was cruel and unusual punishment under the Eighth Amendment. In his pro se brief filed on direct appeal, Petitioner stated the trial court violated his " 6 th Amendment" Constitutional rights "and others." This is the only reference the Court h a s found on the record that Petitioner made to his Constitutional rights in the state court p ro c e e d in g s , and Petitioner did not specifically assert an Eighth Amendment claim or cite re le v a n t Eighth Amendment cases. McDonald, 364 Ark. at 494-97. Accordingly,

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Petitioner's Eighth Amendment claim should be defaulted unless he can establish cause f o r the default and actual prejudice. B. K n o w in g and Voluntary Plea

P e titio n e r also claims his guilty plea was not knowing and voluntary because "he w a s under the impression, based upon consulting with his attorney, that the jury would be lim ite d to considering a range of 10 to 25 years in the sentencing phase." (#1 at p. 7) Petitioner did assert the factual basis for this claim in his pro se brief on direct appeal w h e n he stated his counsel told him "that the prosecutor would allow us to plead to a jury a n d the jury would be empaneled for sentencing of up to 25 years." (#1 at p. 12) The A rk a n sa s Supreme Court, however, rejected the claim as procedurally barred because the P e titio n e r failed to preserve the issue for appeal by objecting at trial. McDonald, 364 A rk . at 496 (citing Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004)). This Court is unable to grant federal habeas relief on a federal claim that the state a p p e lla te court declined to address because the petitioner failed to meet a state procedural re q u ire m e n t constituting an "independent and adequate state ground." Crawford v. M in n e s o ta , 498 F.3d 851, 854 (8th Cir. 2007) (citing Coleman v. Thompson, 501 U.S. 7 2 2 , 730, 111 S.Ct. 2546 (1991)). Federal courts should not consider whether the state c o u rt properly applied its default rule to the claim. Clemons v. Luebbers, 381 F.3d 744, 7 5 0 (8th Cir. 2004). Federal courts do not sit to correct a state court's application of its o rd in a rily adequate procedural rules except in unusual circumstances. See Lee v. Kemna,

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534 U.S. 362, 376, 122 S.Ct. 877 (2002). To be "independent and adequate," a state p ro c e d u ra l bar must be "firmly established and regularly followed" by the time it is a p p lie d . Id. (citing Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850 (1991)). Petitioner does not dispute that the Arkansas Supreme Court regularly follows the ru le of dismissing arguments not preserved for appeal or that the rule is firmly e s ta b lis h e d . Accordingly, Petitioner's claim is procedurally defaulted unless he can e s ta b lis h cause and prejudice or miscarriage of justice. C. In e ffe c tiv e Assistance of Counsel

A s part of his claim that his guilty plea was not knowing and voluntary, Petitioner c la im s his attorney misrepresented the plea agreement when describing it to him. (#1 at p . 7) To the extent Petitioner is raising an ineffective assistance of counsel claim in his p e titio n , this claim is also procedurally barred. Under Arkansas law, ineffective assistance of counsel claims are properly raised in a petition to the trial court under Rule 37 of the Arkansas Rules of Criminal Procedure. McArty v. State, 355 Ark. 445, 448, 983 S.W.2d 418 (1998). Petitioner timely filed a R u le 37 petition which the trial court denied. McDonald v. State, No. CR 06-1060, 2006 W L 3034635, *1 (October 26, 2006). Further, Petitioner timely filed a notice of appeal w ith the Arkansas Supreme Court. Petitioner did not, however, tender a record to the C o u rt within ninety days as required by Arkansas Rule of Appellate Procedure - Civil 5(a)

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as applied through Arkansas Rule of Appellate Procedure - Criminal 4(a) in order to p e rf e c t his appeal. Id. Accordingly, the Court dismissed his appeal. Id. Again, Petitioner does not allege that the Arkansas Supreme Court fails to re g u la rly follow its rule of dismissing cases in which a record is not lodged within ninety d a ys . Consequently, Petitioner's ineffective assistance of counsel claim should be p ro c e d u ra lly defaulted unless he can establish cause and prejudice or miscarriage of ju s tic e . D. C a u s e and Prejudice

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 , cause is established when "some objective factor external to the defense im p e d e [ s ] counsel's efforts to comply with the State's procedural rule." Murray, 477 U .S . at 488. The Court granted Petitioner several extensions of time to reply to Respondent's p ro c e d u ra l default argument. (#12, #14, #16, #19) As of this date, however, Petitioner h a s not filed a reply or alleged any facts claiming an external factor caused his failure to f ile the record to perfect his appeal. Because Petitioner has not established cause for his p ro c e d u ra l default, the Court should not reach the question of prejudice. McCleskey v. Z a n t, 499 U.S. 467, 502, 111 S.Ct. 1454, 1474 (1991).

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E.

M is c a r r ia g e of Justice

P e titio n e r also may 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, a 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. Cagel v. Norris, 474 F.3d 1090, 1 0 9 9 (8th Cir. 2007) (quoting Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851 (1995)). Petitioner has not come forward with any new evidence of actual innocence. Instead, in h is pro se brief on direct appeal which is attached to his petition, Petitioner acknowledges h is guilt. (#1 at p. 19) Thus, Petitioner has not established a miscarriage of justice. IV. C o n c lu s io n : F o r the foregoing reasons, the Court recommends that the District Court dismiss th e petition for writ of habeas corpus with prejudice. D A T E D this 10th day of June, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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