Smith v. Norris
ORDER denying 44 Motion for Certificate of Appealability. Signed by Magistrate Judge Beth Deere on 4/30/09. (dac)
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION A L B E R T KIETH SMITH A D C # 133395 VS. NO. 5:07CV00310-BD PETITIONER
L A R R Y NORRIS, Director, Arkansas Dept. of Correction
R ESPO N D EN T
ORDER B y Order dated March 26, 2009, this Court denied Petitioner's application for a w rit of habeas corpus under 28 U.S.C. § 2254 that challenged Petitioner's conviction for c a p ital murder and kidnaping in the Circuit Court of Benton County, Arkansas. In his h a b e as corpus action, Petitioner claimed: (1) the trial court lacked jurisdiction; (2) the trial court erred by failing to direct a verdict based on insufficiency of the evidence; (3) the trial court erred by permitting the State to shift the burden of proof to Petitioner; (4 ) the trial court erred by failing to properly instruct the jury with regard to evidence that w a s not admitted for the truth of the matter asserted; (5) the trial court erred by permitting th e state to introduce evidence of prior bad acts; and (6) ineffective assistance of trial and a p p e lla te counsel. This Court denied the petition finding that Petitioner's jurisdiction and b u rde n -shif tin g claims were without merit and all of Petitioner's remaining claims were p ro c e d u ra lly barred. Petitioner has filed a Motion for a Certificate of Appealability (COA) in which he a sk s the Court to allow review of whether sufficient cause exists to overcome the
p ro c e d u ra l bar in relation to his ineffective assistance of counsel and other procedurally d e f au lte d claims. Petitioner claims that his "constitutional rights to effective assistance of c o u n se l at all stages of the criminal proceedings and on direct appeal of his conviction; h is right to an appeal of this criminal conviction and his right to a fundamentally fair trial w e re violated." (#44 at p. 2) T h e COA statute establishes procedural rules and requires a threshold inquiry into w h e th e r the circuit court of appeals may entertain an appeal. Slack v. McDaniel, 529 U.S. 4 7 3 , 482, 120 S.Ct. 1595, 1603 (2000). Title 28 U.S.C. § 2253 limits the right of appeal to cases in which "a circuit justice or judge issues a certificate of appealability . . . in a habeas corpus proceeding in which the detention arises out of process issued by a State c o u rt[ .]" 28 U.S.C. § 2253(c)(1)(A). In Slack, the Supreme Court addressed the requirements a petitioner must meet to s a tis f y § 2253(c). The Court stated: W h e n the district court denies a habeas petition on procedural grounds w ith o u t reaching the prisoner's underlying constitutional claim, a COA sh o u ld issue when the prisoner shows, at least, that jurists of reason would f in d it debatable whether the petition states a valid claim of the denial of a c o n stitu tio n a l right and that jurists of reason would find it debatable w h e th e r the district court was correct in its procedural ruling. . . .Where a p lain procedural bar is present and the district court is correct to invoke it to d is p o s e of the case, a reasonable jurist could not conclude either that the d is tric t court erred in dismissing the petition or that the petitioner should be a llo w e d to proceed further. In such a circumstance, no appeal would be w a rr a n te d . S la c k , 529 U.S. at 484.
A f te r careful consideration, the Court finds that a reasonable jurist could not c o n c lu d e that the Court erred in dismissing Petitioner's claims as procedurally defaulted. In this case, the procedural bar is plain. On direct appeal of his conviction, the Arkansas S u p r e m e Court dismissed Petitioner's sufficiency of the evidence claim on procedural g ro u n d s because the argument was not preserved for appeal. Smith v. State, 367 Ark. 2 7 4 , 282-87, 239 S.W.3d 494, 501 (2006). It also dismissed his failure to instruct claim o n procedural grounds for Petitioner's failure to substantiate the claim with any argument o r authority in his appellate brief. Id. After 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. The tria l court dismissed the petition, which included Petitioner's ineffective assistance of co u n sel claims, on procedural grounds because Arkansas Rule of Criminal Procedure 3 7 .1 (d ) requires a petitioner to verify a Rule 37 petition and the petition filed by P e titio n e r was not verified within the time allowed under Rule 37. Smith v. State, No. CR 0 7 -2 4 1 , 2007 WL 1448707 at *1 (May 17, 2007); see Hunt v. Houston, ___ F.3d ___, 2 0 0 9 WL 1078314 at *7 (8th Cir. 2009) (holding federal courts may not review claims th e state court has refused to consider because of petitioner's failure to satisfy a state p ro c e d u ra l requirement unless the procedural rule is not firmly established and regularly f o llo w e d ). Petitioner has not claimed that the procedural rules the state courts applied to h is case were not firmly established or regularly followed.
P e titio n e r claims that Arkansas Rule of Criminal Procedure 37.1(d) is u n c o n stitu tio n a l, however Petitioner never raised this issue in an appeal to the Arkansas S u p r e m e Court. Consequently, it is defaulted. Additionally, Petitioner never raised a F e d e r a l Constitutional claim with the state courts regarding evidence of "prior bad acts" a d m itte d at trial. Consequently, Petitioner's claims are plainly barred unless he can e sta b lis h cause and prejudice. In his motion for COA, Petitioner again argues that the Respondent's failure to h a v e more than two copies of the 2006 Arkansas Court Rules in the prison library and the B e n to n County Circuit Clerk's filing of his unverified petition caused his default. A r e a so n a b l e jurist, however, could not conclude that these circumstances constitute cause f o r Petitioner's default. This Court is not unsympathetic to Petitioner's claim that his trial an d appellate counsel caused the defaults at trial and on direct appeal; however, this Court c a n n o t consider that claim because the state courts have held, based on firmly established a n d regularly followed procedural rules, that Petitioner's ineffective assistance of counsel c la im s are procedurally barred. Accordingly, the Motion for Certificate of Appealability (#44) is DENIED. IT IS SO ORDERED, this 30th day of April, 2009. _____________________________________ UNITED STATES MAGISTRATE JUDGE
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