Beason v. Norris

Filing 13

RECOMMENDED DISPOSITION recommending that the District Court dismiss with prejudice 1 Petitioner's Petition for Writ of Habeas Corpus. Objections to R&R due by 5/5/2009. Signed by Magistrate Judge Beth Deere on 4/21/09. (hph)

I N THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION R I C H A R D BEASON VS. NO. 5:07-CV-00235-BSM-BD 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:

R ESPO N D EN T

T h e following recommended disposition has been sent to United States District J u d g e Brian S. Miller. Any party may file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the o b je c tio n . If the objection is to a factual finding, specifically identify that finding and the e v i d e n c e that supports your objection. An original and one copy of your objections must b e received in the office of the United States District Court Clerk no later than eleven (1 1 ) days from the date you receive the Recommended Disposition. A copy will be f u rn is h e d to the opposing party. Failure to file timely objections may result in waiver of th e 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

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II.

B a c k gro u n d : O n January 24, 1997, Petitioner Richard Beason pled guilty to two delivery-of-

c o n tro lle d -s u b s ta n c e charges in Crittenden County Circuit Court and received suspended s e n te n c es of twenty years in each case.1 (Docket entry #5-2 at p. 2) On September 1, 2 0 0 6 , the State filed a petition to revoke Petitioner's probation and suspended sentences. (#5-4 at p.2) On September 11, 2006, Petitioner pled guilty to two counts of violating the c o n d itio n s of his suspended sentence. (#12-3 at p. 24) He was sentenced to 20 years in th e Arkansas Department of Correction ("ADC") on each count with the sentences to be s e rv e d concurrently. (#12-3 at p. 25) Following entry of the Judgment, Petitioner did not s e e k post-conviction relief with the trial court under Arkansas Rule of Criminal P r o c e d u re 37. (#9 at p. 1) P e titio n e r filed this § 2254 petition for writ of habeas corpus claiming ineffective a ss is ta n c e of counsel and also claiming that the guilty plea, which led to his current inca rce ratio n , was not knowingly, intelligently, or voluntarily made. (#1 at pp. 6-8) In h is response to the petition (#5), Respondent argues the Petitioner's claims are p ro c e d u ra lly barred. Petitioner has replied to the response claiming that his attorney and A D C officials caused his default by advising him that filing a state post-conviction p e t itio n would be a "waste of time." (#9 at p. 1) Petitioner also claims his lack of access

On the same day, Petitioner also received suspended sentences in Crittenden C o u n ty Circuit Court Case Nos. CR 95-959, CR 95-960, and CR 97-247. (#1 at p. 1) 2

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to a law library caused his default. (#9 at pp. 1-2) For the reasons set forth below, the C o u rt recommends that the District Court dismiss the petition with prejudice. III. P ro ce d u ra l Default: B e f o re 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 those courts an opportunity to pass upon and c o rr e 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 n o remaining state court remedy are defaulted, and a habeas petitioner's default will be e x c u se 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). If no cause has been shown, the prejudice e le m e n t need not be addressed. McCleskey v. Zant, 499 U.S. 467, 502, 111 S.Ct. 1454, 1 4 7 4 (1991).

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In this case, Petitioner pled guilty to the charges that led to his sentence. Accordingly, Petitioner could not file a direct appeal of his conviction. See ARK. R. APP. P . CRIM. 1(a). Additionally, Petitioner never attempted to bring a Rule 37 petition before the trial court. (#9 at p. 1) Consequently, 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, 501 U.S. at 750, 1 1 1 S.Ct. at 2565. A. C a u s e and Prejudice In his reply to Respondent's procedural default argument, Petitioner claims his d e f au lt was caused by his attorney and ADC officials telling him a post-conviction p e titio n would be a "waste of time." Petitioner also claims his minimal access to the law lib ra ry caused his default. Neither of these circumstances, however, constitutes cause. Cause is established when "some objective factor external to the defense impede[s] . . . efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 4 8 8 , 106 S.Ct. 2639 (1986). In proceedings in which the Sixth Amendment requires le g a l representation, ineffective assistance of counsel can be cause for a procedural d e f a u lt. Murray, 477 U.S. at 488. A defendant is not, however, constitutionally entitled to effective assistance of counsel in state post-conviction proceedings. See Coleman, 501 U .S . at 752. Consequently, any post-conviction advice Petitioner received from his

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a tto rn e y cannot constitute cause for a procedural default. See Nolan v. Armontrout, 973 F .2 d 615, 616-17 (8th Cir. 1992); Lamp v. State of Iowa, 122 F.3d 1100, 1105 (8th Cir. 1 9 9 7 ). Further, "a claim of ineffective assistance must be presented to the state courts as a n independent claim before it may be used to establish cause for a procedural default." W y ld e s v. Hundley, 69 F.3d 247, 253 (8th Cir. 1995), cert. denied, 517 U.S 1172, 116 S .C t. 1578 (1996) (quotation omitted). In this case, Petitioner did not file a Rule 37 p e titio n with the trial court alleging ineffective assistance of counsel. Accordingly, in e f f e c tiv e assistance of counsel cannot be cause for Petitioner's procedural default. P e titio n e r also claims unidentified ADC officials caused his default by telling him a post-conviction petition would be a "waste of time" and by providing him only limited a c ce ss to a law library. A criminal defendant's "right of access to the courts requires p ris o n authorities to assist inmates in the preparation and filing of meaningful legal p a p e rs by providing prisoners with adequate law libraries or adequate assistance from p e rs o n s trained in the law." Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1497 (1 9 7 7 ). A petitioner claiming that lack of access to the courts is cause for his procedural d e f au lt must show that "the lack of a library . . . hindered [his] efforts to proceed with a leg a l claim in a criminal appeal, postconviction matter, or civil rights action seeking to v in d ic a te basic constitutional rights." Sabers v. Delano, 100 F.3d 82, 84 (8th Cir. 1996) (p e r curiam).

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T h e ADC can meet its obligation of providing Petitioner access to the courts by p r o v i d in g him with adequate libraries or assistance from persons trained in the law. In this case, Petitioner claims that he did not have access to a law library while at the ADC's d ia g n o stic unit. He admits, however, that after he was transferred to the East Arkansas R e g io n a l Unit he had limited access to the prison's law library.2 (#9 at p. 3) By p ro v id in g Petitioner access to a law library, prison officials met their obligation to allow h im meaningful access to the courts. See Baker v. Norris, 321 F.3d 769, 771-72 (limited ac ce ss to law library with advance sign-up was not cause for default); Williams v. Norris, 8 0 Fed. Appx. 535, 536 (8th Cir. 2003) (lack of access to the law library and inability to c o n su lt with legally trained persons was not cause for default when state had provided the p riso n er with a form for filing his state post-conviction challenge). B. M is c a rr 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. 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 a petitioner "support his

Petitioner was transferred to the East Arkansas Regional Unit on October 24, 2 0 0 6 , well before the 90-day limitation period under Arkansas Rule of Criminal P r o c e d u re 37.2(c) expired after judgment was entered on September 11, 2006. 6

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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. Petitioner has not come forward with any new evidence of actual innocence in o rd e r to overcome the procedural default. Thus, his petition should be denied. IV. C o n c lu s io n T h e Court recommends that the District Court dismiss with prejudice Petitioner's p etitio n for writ of habeas corpus (#1). D A T E D this 21st day of April, 2009.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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