Wilson v. Norris

Filing 13

REPORT AND RECOMMENDATIONS recommending 2 Petition for Writ of Habeas Corpus filed by Alphonso S Wilson be DISMISSED with prejudice. Objections to R&R due by 4/21/2009. Signed by Magistrate Judge Beth Deere on 4/7/09. (mkf)

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

A L P H O N S O S. WILSON A D C #133643 v. C A S E NO.: 5:08CV00081 JLH/BD

PETITIONER

L A R R Y NORRIS, Director, Arkansas Department o f Correction

RESPONDENT

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 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.

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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 II. B a c k gro u n d : A Pulaski County jury found Petitioner Alphonso Wilson guilty of capital murder. W ilso n v. State, 365 Ark. 664, 232 S.W.3d 455, 457 (2006). Petitioner was sentenced to lif e imprisonment without parole. Id. On direct appeal, Petitioner argued there was in s u f f ic ie n t evidence to support his conviction. Id. at 457-58. The Arkansas Supreme C o u rt affirmed Petitioner's conviction and issued a mandate on April 4, 2006. Wilson v. S ta te , No. CR 07-102, 2007 WL 1448704 at *1 (May 17, 2007). Petitioner filed two petitions with the trial court under Arkansas Rule of Criminal P r o c e d u re 37. (docket entry #6-4 and #6-5) The trial court noted that the petition under rev iew was filed June 21, 2006, and was untimely. (#6-6 at p. 1) The court, however, a d d re ss e d the merits of the petition because the Pulaski County Circuit Clerk's records re f le c te d that Petitioner had filed a Rule 37 petition on May 26, 2006, which would have b e e n timely.1 (#6-6 at p. 1) The trial court denied Petitioner's requested relief finding that his trial counsel had been effective and his allegations of mental incompetence were n o t supported by the record. (#6-6 at pp. 1-2)

At the time the trial court was ruling on the petition, a copy of the earlier-filed p e titio n was not in the case file. (#6-6 at p. 1) 2

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P e titio n e r appealed the trial court's denial of Rule 37 relief. Wilson, 2007 WL 1 4 4 8 7 0 4 at *1. The Arkansas Supreme Court, however, dismissed the appeal on P e titio n e r' s motion to extend the time to file his brief. Id. The Arkansas Supreme Court h e ld that Petitioner could not succeed in his appeal because the trial court had lacked ju ris d ic tio n to consider the Petitioner's Rule 37 petition because the timely filed May 23, 2 0 0 6 petition was not verified, and the verified petition filed June 21, 2006, was u n tim e ly.2 Id. (citing Shaw v. State, 363 Ark. 156, 211 S.W.3d 506 (2005)). P e titio n e r filed this § 2254 petition for writ of habeas corpus claiming ineffective a ss ista n c e of counsel for his trial counsel's failure to: (1) challenge the admission of his a lle g e d ly coerced custodial statements; (2) object to his being tried as an accomplice w h e n he did not touch a weapon or use a weapon on the victim; and (3) raise duress as a d e f en s e . (#2 at pp. 5-8) Petitioner also claims the Arkansas Supreme Court acted u n c o n stitu tio n a lly by denying his right to appeal. (#2 at p. 10) In his response to the petition (#5), Respondent argues the Petitioner's claims are p ro c e d u ra lly barred. In his reply to the response, Petitioner claims his trial attorney, the P u lask i County Circuit Clerk, and the Arkansas Supreme Court caused his default. (#7)

The record before the Arkansas Supreme Court did not include the petition filed o n May 26, 2006, which was referenced in the trial court's order. Wilson, 2007 WL 1 4 4 8 7 0 4 at *1. The record did contain, however, a petition file-marked May 23, 2006. Id. 3

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For the reasons set forth below, the Court recommends that the District Court d is m is s 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, the only issue Petitioner raised in his direct appeal was sufficiency of th e evidence. Petitioner does not, however, attempt to raise sufficiency of the evidence c la im in this petition. Instead, he raises three ineffective assistance of counsel claims and a claim against the Arkansas Supreme Court related to his appeal of the denial of relief u n d e r Rule 37. Petitioner has not properly presented any of these claims to the state courts. As set o u t above, Petitioner attempted to bring a Rule 37 petition before the trial court raising in e f fe c tiv e assistance of counsel and mental incompetence. (#6-8 at pp. 18-19) The A rk a n s a s Supreme Court, however, ruled the petition was untimely. Wilson, 2007 WL 1 4 8 7 0 4 at *1. Consequently, all of the claims Petitioner raises are procedurally defaulted u n le ss he can establish "cause for the default and actual prejudice as a result of the a lleg e d violation of federal law, or demonstrate that failure to consider the claims will re su lt in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. A. C a u s e and Prejudice C a u s e 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). Petitioner claims ineffective assistance of counsel caused h is default. In proceedings in which the Sixth Amendment requires legal representation, in e f f e c tiv e assistance of counsel can be cause for a procedural default. Murray, 477 U.S.

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a t 488. A defendant is not, however, constitutionally entitled to effective assistance of c o u n se l in state post-conviction proceedings. See Coleman, 501 U.S. at 752. Consequently, any post-conviction advice Petitioner received from counsel who re p re se n te d him at trial or on direct appeal cannot constitute cause for his procedural d e f au lt of his Rule 37 petition. See Nolan v. Armontrout, 973 F.2d 615, 616-17 (8th Cir. 1 9 9 2 ); Lamp v. State of Iowa, 122 F.3d 1100, 1105 (8th Cir. 1997). Furthermore, "a claim of ineffective assistance must be presented to the state c o u rts as an independent claim before it may be used to establish cause for a procedural d e f au lt." Wyldes v. Hundley, 69 F.3d 247, 253 (8th Cir. 1995), cert. denied, 517 U.S 1 1 7 2 , 116 S.Ct. 1578 (1996) (quotation omitted). In this case, Petitioner did not file a tim e ly, verified Rule 37 petition with the trial court alleging ineffective assistance of his trial counsel.3 Wilson, 2007 WL 1448704 at *1. Accordingly, Petitioner cannot raise in e f f e c tiv e assistance of counsel as cause for his procedural default. P etitio n er also claims unidentified officials at the Pulaski County Circuit Clerk's o f f ic e caused his default. (#3 at p. 7) "[I]nterference by officials that makes compliance w ith the State's procedural rule impracticable" may amount to cause. McCleskey v. Zant, 4 9 9 U.S. 467, 494, 111 S.Ct. 1454 (1991) (internal quotations omitted). Petitioner does

The trial court mistakenly considered petitioner's ineffective assistance of counsel c la im s and denied relief holding the claims lacked merit. (#6-8 at pp. 23-24) 6

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n o t, however, state how the clerk caused his default. Instead, he cites to the Arkansas S u p re m e Court's opinion dismissing his Rule 37 petition. Assuming Petitioner is claiming the Circuit Clerk caused his default by filing his u n v e rif ied petition, Petitioner's claim lacks merit. While the rule instructs the clerk not to a c ce p t an unverified petition for filing, it does not place upon the clerk an affirmative d u ty to return the unaccepted petition or notify the petitioner of the deficiency. ARK. R. C RIM. P. 37.1(d) The facts of this case do not support an argument that the clerk caused th e default. F in a lly, Petitioner claims the Arkansas Supreme Court caused his default by d is m is s in g his appeal. Petitioner claims that the Arkansas Supreme Court's decision was c o n tra ry to his clearly established Constitutional right to effective assistance of counsel. The Arkansas Supreme Court's decision to dismiss Petitioner's appeal on grounds that the tria l court lacked jurisdiction to hear Petitioner's ineffective assistance of counsel claims tu rn s on state law, namely Arkansas courts' interpretation of the requirements of A rk a n s a s Rule of Criminal Procedure 37. Wilson, 2007 WL 1448704 at *1. This Court c a n n o t review the Arkansas Supreme Court's determinations of state law. As the United S tate s Supreme Court stated, "[I]t is not the province of a federal habeas court to re e x am in e state court determinations on state law questions. In conducting habeas re v ie w , a federal court is limited to deciding whether a conviction violated the C o n s titu tio n , laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62,

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6 8 -6 9 , 112 S.Ct. 475, 480 (1991). Because state law governed the question of the trial co u rt's subject matter jurisdiction, this Court is bound by the Arkansas Supreme Court's ru lin g on the issue. Maynard v. Lockhart, 981 F.2d 981, 986 (8th Cir. 1992) (citing C a rls o n v. State, 945 F.2d 1026, 1029 (8th Cir. 1991)). 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 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 argues innocence but has not come forward with any new evidence of a c tu a l innocence in order to overcome the procedural default. Thus, his petition should b e denied.

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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 (#2). D A T E D this 7th day of April, 2009.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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