Smith v. Norris

Filing 41

MEMORANDUM OPINION AND ORDER dismissing, with prejudice, 2 Petitioner's petition for writ of habeas corpus. Signed by Magistrate Judge Beth Deere on 3/26/09. (hph)

I N THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION A L B E R T KIETH SMITH A D C #133395 v. C A S E NO.: 5:07CV00310-BD P E T IT IO N E R

L A R R Y NORRIS, D ir e c to r , Arkansas Department of Correction

RESPONDENT

MEMORANDUM OPINION AND ORDER I. P r o c e d u r a l History: A lb e rt Kieth Smith, an Arkansas Department of Correction ("ADC") inmate, b rin g s this petition for writ of habeas corpus (docket entry #2) under 28 U.S.C. § 2254. For the reasons that follow, Petitioner's petition is dismissed. II. B a c k gro u n d : In 2005, a jury found Petitioner guilty of capital murder and kidnaping and s e n te n c ed him to a prison term of life, without parole, and a term of forty years. At the clos e of the State's case and at the close of the trial, Petitioner's counsel moved for a d ire c te d verdict "`on insufficiency of the evidence.'" Smith v. State, 367 Ark. 274, 282, 2 3 9 S.W.3d 494, 501 (2006). The trial court denied both motions. Id. O n direct appeal of his conviction, Petitioner argued the trial court erred by: (1) failing to grant his motion for directed verdict challenging the sufficiency of the e v id e n c e, (2) failing to dismiss for lack of jurisdiction; (3) allowing un-redacted custodial 1

sta tem e n ts made by Petitioner into evidence; (4) failing to instruct the jury with regard to e v id e n c e that was not admitted for the truth of the matter asserted; and (5) permitting the S ta te to introduce testimony and exhibits he claims consisted of "prior bad acts." Id. at 2 8 2 -8 7 . The Arkansas Supreme Court ruled that Smith's sufficiency of the evidence a rg u m e n t was not preserved for appeal, and that his jurisdiction argument had no merit. The Court further ruled that the trial court did not err by allowing custodial statements in to evidence, by failing to instruct the jury at the close of the evidence that some e v id e n c e was only to be considered for purposes other than the truth of the matter a ss e rte d , and did not abuse its discretion by admitting evidence Petitioner contends was e v id e n c e of "prior bad acts." Id. at 284-87. A f ter the Arkansas Supreme Court affirmed his conviction on direct appeal, P e titio n e r attempted to file a petition for post-conviction relief with the trial court. (#2 at p . 113) The trial court dismissed the petition for lack of jurisdiction. (#2 at p. 132) Arkansas Rule of Criminal Procedure 37.1(d) requires a petitioner to verify a Rule 37 p e titio n . Smith v. State, No. CR 07-241, 2007 WL 1448707 at *1 (May 17, 2007). The p e titio n filed by Petitioner, within the time allowed under Rule 37, was not verified. Id. Petitioner subsequently filed a "Certificate of Verification." Id. However, the trial court f o u n d that it was not filed until after the sixty-day time limit provided under the Rule. Id. Accordingly, it dismissed the petition for lack of jurisdiction. Petitioner appealed the trial

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c o u rt's denial of his Rule 37 petition. The Arkansas Supreme Court, however, affirmed. Id. at *2. Petitioner raises the following claims for relief in the instant petition: 1. J u r is d ic tio n a l errors including: (a) the trial court erred in failing to dismiss f o r lack of jurisdiction (#2 at p. 5); and (b) the trial court erred in failing to s u b m it the jurisdictional issue to the jury as a matter that must be proven b e yo n d a reasonable doubt. (#2 at p. 5) T h e trial court erred in failing to direct a verdict in Petitioner's favor based o n insufficiency of the evidence. (#2 at p. 6) T h e trial court erred in permitting the State to shift the burden of proof to P e titio n e r. (#2 at p. 8) T h e trial court erred in failing to properly instruct the jury with regard to e v id e n c e that was not admitted for the truth of the matter asserted. (#2 at p. 10) T h e trial court erred in permitting the state to introduce evidence of prior b a d acts. (#2 at p. 12) In e f f e c tiv e assistance of counsel at trial and on direct appeal. (#2 at p. 12)

2.

3.

4.

5.

6.

R e sp o n d e n t argues claims 2, 4, and 6 are procedurally defaulted. Respondent c o n te n d s claims 1(a) and 5 are not cognizable in a federal habeas proceeding because they d o not allege a violation of federal law. Further, Respondent argues the Court should d e f e r to the decision of the state court denying relief to Petitioner on claims 1(b) and 3. III. S t a 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

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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). 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 the state court iden tifies the correct governing legal principle from [the United States Supreme] Court's d e c is io n s but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "In other words, it is not enough for us to conclude that, in our in d e p e n d e n t judgment, we would have applied federal law differently from the state c o u rt; the state court's application must have been objectively unreasonable." Rousan v. R o p e r, 436 F.3d 951, 956 (8th Cir. 2006) (citation omitted). In addition, in a federal habeas proceeding, a state court's factual findings are e n title d to a presumption of correctness, absent procedural error. Those findings may be

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s e t aside "only if they are not fairly supported by the record." Simmons v. Luebbers, 299 F .3 d 929, 942 (8th Cir. 2002) (quoting Purkett v. Elem., 514 U.S. 765, 769, 115 S.Ct. 1 7 6 9 (1995) and Middleton v. Roper, 455 F.3d 838, 845 (8th Cir. 2006)). IV. A. A n a ly s is of Petitioner's Claims: P r o c e d u r a lly Defaulted Claims 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 them an opportunity to pass upon and correct a n y constitutional errors. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347 (2004); see a ls o 28 U.S.C. § 2254(b) and (c). "[A] federal habeas petitioner's claims must rely on the s a m e factual and legal bases relied on in state court." Interiano v. Dormire, 471 F.3d 8 5 4 , 856 (8th Cir. 2006) (citing Winfield v. Roper, 460 F.3d 1026, 1034 (8th Cir. 2006); O sb o rn e v. Purkett, 411 F.3d 911, 919 (8th Cir. 2005)). Claims in a federal habeas p e titio n not presented in the state court proceedings and for which there is no remaining sta te court remedy are defaulted, and a habeas petitioner's default will be excused only if h e can "demonstrate cause for the default and actual prejudice as a result of the alleged v io la tio n of federal law, or demonstrate that failure to consider the claims will result in a f u n d a m e n ta l miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S .C t. 2546, 2565 (1991). If no cause has been shown, the prejudice element need not be a d d re s s e d . McCleskey v. Zant, 499 U.S. 467, 502, 111 S.Ct. 1454, 1474 (1991).

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T h is 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 so 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. Sweet v. Delo, 125 F.3d 1144, 1151 (8 th Cir. 1997). 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, 5 3 4 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)). 1. S u ffic ie n c y of the Evidence

P e titio n e r claims the trial court should have granted a directed verdict because the S tate presented insufficient evidence to support his conviction. Petitioner raised this c la im on his direct appeal to the Arkansas Supreme Court, but the Court rejected the c la im as procedurally barred because the Petitioner failed to preserve the issue for appeal a t trial by failing to specifically state a deficiency in the proof on the elements of the o f f e n s e s. Smith, 367 Ark. at 283 (citing Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2 0 0 6 )) .

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P e titio n e r does not dispute that the Arkansas Supreme Court regularly follows the ru le of dismissing arguments not preserved for appeal before the trial court or that this ru le is firmly established. Consequently, Petitioner's claim is procedurally defaulted u n le ss he can establish cause and prejudice or miscarriage of justice. 2. F a i lu r e to Instruct the Jury

P e titio n e r also contends that the trial court erred by failing to instruct the jury at th e close of the evidence about evidence introduced to the jury but not offered for the tru th of the matter asserted. The Arkansas Supreme Court dismissed the argument on d ire c t appeal because it was "not supported by case law" or "convincing argument" in the A p p e lla n t's brief. Smith, 367 Ark. at 286 (citing Hathcock v. State, 357 Ark. 563, 182 S .W .3 d 152 (2004)). Petitioner does not dispute that the Arkansas Supreme Court's rule dismissing a rg u m e n ts that are not supported by convincing argument or authority is not firmly e sta b lish e d or regularly followed. Accordingly, Petitioner's claim is procedurally d e f au lte d unless he can establish cause and prejudice or miscarriage of justice. 3. In e ffe c tiv e Assistance of Counsel

P e titio n e r claims his counsel at the trial and on appeal was constitutionally in e f f e c tiv e . Petitioner attempted to bring an ineffective assistance of counsel claim in his R u le 37 petition before the trial court. The trial court, however, dismissed the petition for la c k of jurisdiction because Petitioner failed to file a timely, verified petition as required

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b y Arkansas Rule of Criminal Procedure 37.1(c). Again, Petitioner does not challenge th a t Arkansas trial courts regularly dismiss unverified Rule 37 petitions. Consequently, P e titio n e r 's ineffective assistance of counsel claims are also procedurally defaulted unless h e can establish cause and prejudice or miscarriage of justice. 4. P rio r Bad Acts

P e titio n e r argues that the trial court erred by admitting certain evidence that should h a v e been excluded under Arkansas Rule of Evidence 404(b) as "prior bad acts." 1 R e s p o n d e n t counters that this claim cannot be the basis for habeas relief because P e titio n e r is not alleging a violation of a right protected by the United States Constitution. The claim, however, is procedurally barred. 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 ). Not once, however, throughout the state court post-conviction and appellate p ro c e ss did Petitioner allege a violation of federal or constitutional law in relation to his c la im that evidence admitted should have been excluded as evidence of "prior bad acts." See Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349 (2004) (requiring that p riso n e rs "fairly present" the federal nature of their claims in each appropriate state court)

The evidence admitted was a briefcase that contained a map of the Southeastern U n ite d States, a rope, and a knife; evidence that Petitioner went to Florida where one of h is ex-wife's internet contacts lived; and that the internet contact had received email a b o u t Petitioner's ex-wife by a person with a "jccart" account name, an account registered o n Petitioner's computer. See Smith, 367 Ark. at 286. 8

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(c ita tio n s omitted). To fairly present a federal claim to state courts, a petitioner must have re f e rr e d to "a specific federal constitutional right, a particular constitutional provision, a f e d era l constitutional case, or a state case raising a pertinent federal constitutional issue" in a claim before the state courts. Ford v. Norris, 364 F.3d 916, 919 (8th Cir. 2004). In this case, Petitioner cited only to the Arkansas Rules of Evidence and Arkansas c a se law to support his claim in the state courts. The state courts did not consider whether th e trial court had violated any federal rule, or constitutional or statutory right. Instead, th e y decided the issue based solely on Arkansas law. Smith, 367 Ark. at 286-87. Consequently, Petitioner has procedurally defaulted the claim unless he can demonstrate c a u se for the default and actual prejudice or miscarriage of justice. See Boysiewick v. S c h r ir o , 179 F.3d 616, 621 (8th Cir. 1999) (dismissing as procedurally defaulted p e titio n e r's claims that evidence was admitted in violation of his rights under the Sixth a n d Fourteenth Amendments to the Constitution when petitioner had only raised claims u n d e r state evidentiary law on direct appeal). 5. 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 r d , 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.

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In his amended reply to the response, Plaintiff claims his default was caused by in e f fe c tiv e assistance of counsel, lack of notice about changes to Rule 37, and the Benton C o u n ty Circuit Clerk's failure to return his unverified petition. (#40 at pp. 2-6) None of th e s e circumstances, however, constitute cause for Petitioner's procedural default. a. In e f f e c tiv e Assistance of Counsel

" [ A ] claim of ineffective assistance must be presented to the state courts as an in d e p e n d e n t 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). While Petitioner raised his ineffective assistance o f counsel claims in his Rule 37 petition, Petitioner's Rule 37 petition was dismissed by th e trial court for lack of jurisdiction, and the dismissal was affirmed by the Arkansas S u p re m e Court. Smith, 2007 WL 1448707 at *1. Accordingly, Petitioner has not su c c e ss f u lly established ineffective assistance of trial or appellate counsel in order to e s ta b lis h cause for his procedural default. b. A m e n d m e n ts to Arkansas Rule of Criminal Procedure 37.1

P e titio n e r also argues that he did not file a verified Rule 37 petition because he w a s unaware of an amendment to Rule 37.1 of the Arkansas Rules of Criminal Procedure. Rule 37.1 was amended effective March 1, 2006 to require that a petition include v e rif ic a tio n language substantially similar to a form set forth in Rule 37.1(c). Ark. R. C rim . P. 37.1 (2007).

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A s cause for his default, Petitioner claims the "Arkansas Department of Correction d id not notify the inmates of the significant rule change in 2006" to Arkansas Rule of C rim in a l Procedure 37.1, and there were only two copies of the 2006 edition of the A rk a n sa s Rules of Criminal Procedure with the Amendment to Rule 37.1 included, and h e did not have access to one of these and had to rely on a 2005 edition of the rule book. This argument fails for several reasons. F irs t, prison officials may not deny or obstruct an inmate's access to the courts. McMaster v. Pung, 984 F.2d 948, 953 (8th Cir. 1993). A petitioner claiming lack of a c c e ss to the courts must show that "the lack of a library . . . hindered [his] efforts to p ro c e e d with a legal claim in a criminal appeal, postconviction matter, or civil rights a c tio n seeking to vindicate basic constitutional rights." Sabers v. Delano, 100 F.3d 82, 84 (8 th Cir. 1996) (per curiam). In this case, Petitioner admits the prison library had two c o p ies of the 2006 edition of the Arkansas Rules of Criminal Procedure for inmates to u s e . By providing these resources, prison officials met their obligation to allow Petitioner m e a n in g f u l access to the courts. See Baker v. Norris, 321 F.3d 769, 771-72 (limited a c ce ss to law library with advance sign-up and ignorance of statute's enactment was not ca u se for default); Williams v. Norris, 80 Fed. Appx. 535, 536 (8th Cir. 2003) (lack of a c ce ss to the law library and inability to consult with legally trained persons was not c a u se for default when state had provided the prisoner with a form for filing his state p o st-co n v ic tio n challenge).

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S e c o n d , the requirement of verification of a petition under Rule 37.1 was not new w ith the 2006 amendment. As the Reporter's Note to the 2006 amendment indicates, "R u le 37.1 formerly stated that a petition for postconviction relief had to be `verified.' The 2006 amendments added subsections (c) and (d) to reduce the likelihood that the v e rif ic a tio n requirement would be overlooked by the petitioner or the courts." Ark. R. C rim . P. 37.1, Reporter's Note, 2006 Amendment. In the 2005 edition of the Arkansas C o u rt Rules, Rule 37.1(d) provided that a petitioner "may file a verified petition in the c o u rt which imposed the sentence." Arkansas courts have for many years construed the v e rif ic a tio n requirement as important to prevent perjury. See Worthem v. State, 347 Ark. 8 0 9 , 66 S.W.3d 665 (2002) (per curiam) (verification requirement in Rule 37.1 is "of s u b s ta n tiv e importance to prevent perjury" and a petition that is not verified may not be f iled without leave of the court); Carey v. State, 268 Ark. 332, 333, 596 S.W.2d 688, 689 (1 9 8 0 ) ("Rule 37.1 requires that motions for postconviction relief be verified and be filed w ith the court, a requirement of substantive importance to prevent perjury") (citing Evans v . State, 242 Ark. 92, 411 S.W.2d 860 (1967)). Accordingly, even under the rule a p p lic a b le prior to the 2006 amendment, Petitioner was required to file a verified petition. F in a lly, Petitioner's argument assumes that prisoners are exempt from the principle th a t everyone is presumed to know the law and is subject to the law whether or not he or s h e is actually aware of the particular law of which he has run afoul. This is not the case. Prisoners, like other citizens, are presumed to know the law. Baker v. Norris, 321 F.3d

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7 6 9 , 772 (8th Cir. 2003) (citations omitted). Further, the Eighth Circuit has consistently re je c te d claims that ignorance of the law is cause for procedural default. See Williams v. L o c k h a r t, 873 F.2d 1129, 1130 (8th Cir. 1989), cert. denied, 493 U.S. 942 (1989) (ig n o ra n c e of law does not constitute cause for default); see also Shoemate v. Norris, 390 F .3 d 595, 598 (8th Cir. 2004) (prisoner's misunderstanding of proper procedure to file sta te petition was not cause for tolling the statute of limitations); Cross-Bey v. Gammon, 3 2 2 F.3d 1012, 1016 (8th Cir. 2003) (petitioner's lack of understanding of the law, and of th e effect of his voluntary dismissal was not cause). Petitioner's claimed ignorance of the 2 0 0 6 amendment to Rule 37.1 is not cause for his default. c. In terf ere n ce by the Benton County Circuit Clerk

P e titio n e r claims that the Benton County Circuit Clerk's failure to return his u n v e rif ie d petition was cause for his default. "[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 clerk c a u se d the default. While the rule instructs the clerk not to accept an unverified petition f o r filing, it does not place upon the clerk an affirmative duty to return the unaccepted p e titio n . Ark. R. Crim. P. 37.1(d) Instead, the rule provides the "circuit court or any a p p e llate court shall dismiss any petition that fails to comply with subsection (c) of this ru le ." Id. In this case, the trial court followed the rule by dismissing the petition.

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T h e re f o re , the clerk's failure to return the unverified petition cannot be cause for P e titio n e r' s default. Because Petitioner has not established cause for his failure to raise his claims with th e state courts, it is not necessary to reach the question of prejudice. 5. 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 will 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 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. In his amended reply, Petitioner claims that the admission of his "prior bad acts" le d to "the conviction of a defendant who is actually innocent." (#40 at p. 6) Petitioner h a s not, however, come forward with any new evidence of actual innocence in order to o v e rc o m e the procedural default. Thus, Petitioner's sufficiency of the evidence, failure to

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in s tru c t the jury, ineffective assistance of counsel, and prior bad acts claims are dismissed f o r procedural default. B. J u r is d ic tio n of the Trial Court P etitio n er makes two jurisdictional arguments. First, he claims that the trial court e r re d by failing to dismiss his case for lack of jurisdiction; and second, he claims it was a v io la tio n of his due process rights for the trial court not to submit a jurisdiction question to the jury.2 Petitioner premises his jurisdictional arguments almost exclusively on A rk a n sa s law.3 He argues the court did not have jurisdiction because the state did not h a v e "physical evidence" that "placed Mr. Howard's death at a time, date or physical lo c a tio n in the State of Arkansas," and the body was discovered in Oklahoma. (#40 at p. 7) O n direct appeal, the Arkansas Supreme Court noted that Ark. Code Ann. § 5-11 1 1 (a ) instructs that jurisdiction is an element that must be proven beyond a reasonable d o u b t to convict someone of an offense. Smith, 367 Ark. at 284. The Court also noted, Respondent argues Petitioner's claim that the trial court erred by failing to dismiss f o r lack of jurisdiction fails because it does not allege a constitutional violation. Respondent admits, however, the Eighth Circuit has held that federal habeas corpus relief is available when a conviction is void for lack of jurisdiction in the trial court. Rhode v. O lk -L o n g , 84 F.3d 284, 287 (8th Cir. 1996) (citations omitted). Additionally, Petitioner h a s filed an amended reply to the response alleging a violation of his due process rights w ith respect to both of his jurisdictional claims. Accordingly, the Court will address both o f Petitioners jurisdictional arguments. P e titio n e r does cite to one federal case, Crawford v. Washington, 541 U.S. 36, 124 S .C t. 354 (2004). He cites it, however, solely for the proposition that the trial court s h o u ld not have allowed the testimony of the victim's co-worker into evidence. 15
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h o w e v e r, that under Ark. Code Ann. § 5-1-111(b), a presumption in favor of jurisdiction is created where the charge is actually filed by the State. Id. citing Ridling v. State, 360 A rk . 424, 203 S.W.3d 63 (2005). Thus, under the statute "before the State is required to p u t on evidence to prove jurisdiction, there must be positive evidence that the offense o c c u rre d outside the jurisdiction of the court." Id. The Court stated in this case, "[t]here w a s no positive evidence presented that the crime actually occurred outside of Arkansas. . . . The record in this case provides ample substantial evidence that, at the very least, the p re m e d ita tio n and deliberation element of capital murder . . . or the act of kidnapping [ sic ] by deception . . . occurred in Arkansas." Id. at 284-85. Accordingly, the Court held th a t the trial court did not err in failing to dismiss for lack of jurisdiction. Id. T h e Arkansas Supreme Court's determination that the trial court had jurisdiction is c o n c lu s iv e . See Rhode v. Olk-Long, 84 F.3d 284, 287 (8th Cir. 1996) (holding the state a p p e lla te court's determination of whether the trial court was vested with jurisdiction u n d er state law was conclusive) (citations omitted). The Arkansas Supreme Court's d ec isio n is not an unreasonable application of clearly established Federal law.4 Further,

Petitioner points to In Re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970) and S a n d s tr o m v. Montana, 442 U.S. 510, 513, 99 S.Ct. 2450, 2454 (1979) in support of his c laim . (#40 at pp. 8-9) Neither case, however, involved a jurisdictional issue or a state s ta tu te creating a presumption of jurisdiction. In Winship the Supreme Court addressed w h e th e r proof beyond a reasonable doubt is required when a juvenile is charged with an a c t which would constitute a crime if committed by an adult. Winship 397 U.S. at 359. In S a n d s tr o m , the Supreme Court considered whether a jury instruction about a presumption im p ro p e rly shifted the burden of proof to the petitioner on the question of his state of m in d . Sandstrom, 442 U.S. at 521. 16

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its decision is not based on an unreasonable determination of the facts in light of the e v id e n c e presented in the State court. C. B u r d e n of Proof Petitioner claims the trial court violated his rights under the fifth, sixth and f o u rte e n th amendment to the Constitution by allowing into evidence un-redacted c u sto d ia l statements he made to investigators. Petitioner claims that by allowing the sta tem e n ts into evidence, the trial court impermissibly shifted the burden of proof to him in violation of his due process rights. Respondent contends that the state courts' d e te rm in a tio n of the issue was not an unreasonable application of clearly established f e d era l law and was not based on an unreasonable determination of the facts in light of th e evidence adduced at trial. The custodial statements admitted into evidence were statements Petitioner made to investigators after they asked him to convince them that he was not guilty given the e v id e n c e they had accumulated. Smith, 367 Ark. at 285. The Arkansas Supreme Court f o u n d that the admission of the custodial statements did not have the effect of shifting the b u rd e n of proof. Id. The Court noted that the trial court correctly instructed the jury that th e state had the burden of proof beyond a reasonable doubt and that Petitioner was not re q u ire d to prove his innocence. Id. Petitioner cites Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970 (1 9 8 5 ) in support of his claim. However, Francis is not applicable. In Francis, the

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U n ite d States Supreme Court was reviewing a challenge to a jury instruction which the p e titio n e r claimed impermissibly shifted the burden of proof. The Court stated the due p ro c e ss clause "prohibits the State from using evidentiary presumptions in a jury charge th a t have the effect of relieving the State of its burden of persuasion beyond a reasonable d o u b t of every essential element of a crime." Id. The Arkansas Supreme Court's ruling is not contrary to the Court's ruling in Francis. In this case, unlike in Francis, the P e titio n e r is not challenging the burden of proof jury instruction given at trial because in th is case, unlike in Francis, the trial court properly instructed the jury that the State had th e burden of proof beyond a reasonable doubt, and that Petitioner was not required to p ro v e his innocence. Smith, 367 Ark. at 285. In reviewing the admissibility of the evidence, the Arkansas Supreme Court a p p lie d well established principles of Federal law. In Oregon v. Elstad, 470 U.S. 298, 3 0 9 , 105 S.Ct. 1285, 1293 (1985), the United States Supreme Court held that the test for a d m is s ib ility of an in-custody statement, made subsequent to Miranda warnings, is w h e th e r the statement was knowingly and voluntarily made. Applying the same principle, th e Arkansas Supreme Court found that since Petitioner was not arguing that the waiver o f his Miranda rights was made by intimidation, coercion, or deception, the statements w e re knowingly and voluntarily made and were admissible. Smith, 367 Ark. at 285. Accordingly, the Court's ruling was not contrary to or an unreasonable application of

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f e d era l law or a based on an unreasonable determination of the facts in light of the e v id e n c e . V. C o n c lu s io n : F o r the foregoing reasons, Petitioner's petition for writ of habeas corpus (#2) is d is m is s e d with prejudice. IT IS SO ORDERED this 26th day of March, 2009.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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