Smith v. Norris

Filing 14

RECOMMENDED DISPOSITION recommending that the District Court dismiss 2 Petitioner's Petition for Writ of Habeas Corpus with prejudice. Signed by Magistrate Judge Beth Deere on 10/8/09. (hph)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION W A I M O N U S H U N D. SMITH A D C #111026 v. C A S E NO.: 5:08CV00200 JMM/BD R ESPO N D EN T PETITIONER

L A R R Y NORRIS, Director, Arkansas Department o f 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 James M. Moody. 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 id 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.

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Mail 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 II. B ackground O n March 22, 2006, a Pulaski County jury found Petitioner guilty of secondd e g re e murder and sentenced him to forty years in the Arkansas Department of Correction (" A D C " ). Petitioner filed a direct appeal of his conviction in which he raised only one c la im , insufficient evidence to support the conviction. The conviction was affirmed by th e Arkansas Court of Appeals on February 7, 2007, and the Court issued a mandate on F e b ru a ry 27, 2007. Smith v. State, CACR 06-700, 2007 WL 404654, at *1 (Feb. 7, 2007); (# 5 -3 at p. 1). P e titio n e r filed a timely petition for post-conviction relief with the trial court. Smith v. State, No. CR 07-12288, 2008 WL 384186, at *1 (Feb. 14, 2008). The trial court d e n ie d relief in an order entered August 29, 2007. Id. Petitioner filed a notice of appeal o f the trial court's order denying post-conviction relief on October 10, 2007. Id. When P e titio n e r attempted to tender a record to the Arkansas Supreme Court, the clerk of court d e c lin e d to file it because the notice of appeal was not timely filed with the trial court. Petitioner filed a pro se motion to file a belated appeal, which the Arkansas S u p re m e Court denied on February 14, 2008. Id. In denying the motion, the Court re s p o n d e d to the Petitioner's claim that he had mailed the notice to the Pulaski County 2

Circuit Clerk in a timely manner. The Court stated it did not follow the "mailbox rule" a n d found that Petitioner had not established "good cause" for his failure to file his notice in a timely manner. Id. Petitioner filed the instant petition seeking relief under 28 U.S.C. § 2254 on July 2 2 , 2008, raising the following claims for habeas relief: (1) the Arkansas Supreme Court a b u s e d its discretion by not granting Petitioner an appeal of the denial of his Rule 37 p e titio n ; (2) ineffective assistance of trial counsel for failing to object to lesser-included o f f e n s e s; and (3) newly discovered evidence of perjured testimony that results in in s u f f ic ie n t evidence to support the conviction. III. T h e Statute of Limitations T h e Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U .S .C . § 2244(d)(1), establishes a one-year statute of limitations during which a state p riso n e r must commence a habeas corpus proceeding under 28 U.S.C. § 2254. The s ta tu te provides that the limitation period begins to run from, "the date on which the ju d g m e n t became final by the conclusion of direct review or the expiration of the time lim it for seeking such review." 28 U.S.C. § 2244(d)(1)(A). It also provides for tolling of th e statute of limitations during the time "a properly filed application for State postc o n v ic tio n or other collateral review with respect to the pertinent judgment or claim is p e n d in g ." 28 U.S.C. § 2244(d)(2).

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After the Court of Appeals upheld Petitioner's conviction, but before the statute of lim ita tio n s expired, the Eighth Circuit issued an en banc decision in Riddle v. Kemna, 523 F .3 d 850 (8th Cir. 2008), abrogating Nichols v. Bowersox, 172 F.3d 1068 (8th Cir. 1999). In Nichols, the Eighth Circuit had considered when a Missouri inmate's judgment was f in a l for purposes of 28 U.S.C. § 2244(d)(1)(A) and had ruled that the conviction was f in a l ninety days after his conviction was affirmed on direct appeal. The Court did not d is c u s s, however, whether the Missouri Court of Appeals was a "court of last resort" u n d e r United States Supreme Court Rule 13.1. In Riddle, the Court held that when the petitioner did not apply to transfer his M is s o u ri case from the Court of Appeals to the Missouri Supreme Court, the direct appeal b e c a m e final when the mandate issued from the Court of Appeals rather than after the end o f the ninety-day period for seeking certiorari with the United States Supreme Court. Riddle, 523 F.3d at 855-56. The Court reasoned that, because no petition for transfer to th e Missouri Supreme Court was filed, Riddle could not seek review in the state court of la s t resort, which also precluded review by the United States Supreme Court. Id. The C o u rt also noted that a change in circuit precedent would constitute an "extraordinary c irc u m s ta n c e " that might serve to equitably toll the AEDPA's statute of limitations, if a p e titio n e r had otherwise been diligently pursuing his rights. Id. at 857. In this case, under the rule in Riddle, Petitioner's judgment became final and the s ta tu te of limitations began to run when the mandate issued from the Court of Appeals on

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February 27, 2007. Smith v. State, CACR 06-700, 2007 WL 404654, at *1 (Feb. 7, 2007). The limitations period continued to run until April 27, 2007, when Petitioner filed a tim e ly petition for post-conviction relief with the trial court under Arkansas Rule of C rim in a l Procedure 37. From April 27, 2007 until June 11, 2008, while the Rule 37 p e titio n was pending, the statute of limitations was tolled under 28 U.S.C. §2244(d)(2). Consequently, Petitioner had 306 days remaining until the statute of limitations expired o n June 30, 2008. Petitioner did not file the instant petition until July 22, 2008. This Petition would have been timely, however, under the rule in Nichols which w o u ld have given Petitioner an additional ninety days under the statute of limitations. P e titio n e r could not have anticipated the change in circuit precedent caused by the Eighth C irc u it's decision in Riddle which occurred while the statute of limitations on his habeas c la im was running. Petitioner appears to have diligently pursued his claim. Accordingly, P e titio n e r is entitled to equitable tolling from June 30, 2008, until he filed his petition on J u ly 22, 2008. See Shelton v. Purkett, 563 F.3d 404, 407 (8th Cir. 2009) (tolling statute o f limitations for petitioner who had otherwise been diligently pursuing his rights because c h a n g e in circuit precedent is an extraordinary circumstance that would permit equitable to llin g ) . IV . P r o c e d u r a l Default R e sp o n d e n t argues that Petitioner's claims are procedurally defaulted. Before s e e k in g federal habeas review, a state prisoner must first fairly present the substance of

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each claim to each appropriate state court, thereby alerting those courts to the federal n a tu re of his claims and giving them an opportunity to pass upon and correct any c o n s titu tio n a l errors. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347 (2004); see also 2 8 U.S.C. § 2254(b) and (c). In order to exhaust, the petitioner must "use the State's e s ta b lis h e d appellate review procedures." Armstrong v. Iowa, 418 F.3d 924, 925 (8th Cir. 2 0 0 5 ) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728 (1999)). State remedies are not fully exhausted if a petitioner "has the right under the law of th e State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). This requires state prisoners to "give the state courts one full opportunity to re s o lv e any constitutional issues by invoking one complete round of the State's e s ta b lis h e d appellate review process." O'Sullivan, 526 U.S. at 845. Claims in a federal h a b e a s petition not presented in the state court proceedings and for which there is no re m a in in g 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). 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 filed a direct appeal of his conviction raising one issue, in s u f f ic ie n t evidence to support his conviction. See ARK. R. APP. P. CRIM. 1(a). Additionally, Petitioner brought a timely a Rule 37 petition before the trial court raising th e following claims: (1) ineffective assistance of counsel for failing to object to in s tru c tio n s for lesser-included offenses; (2) ineffective assistance of counsel for o b je c tin g to the prosecution's motion to declare a mistrial; and (3) his conviction was b a s e d on perjured testimony. (#9 at p. 1) The trial court denied Petitioner relief on his R u le 37 petition in an order dated August 29, 2007. Petitioner filed a notice of appeal of the order denying post-conviction relief on O c to b e r 10, 2007. When Petitioner tendered a record to the Arkansas Supreme Court, h o w e v e r, the Court declined to file it because the notice of appeal was not timely filed w ith the circuit clerk. Smith v. State, No. CR 07-12288, 2008 WL 384186, at *1. Petitioner then filed a motion to file a belated appeal with the Arkansas Supreme Court. In the motion, Petitioner claimed he placed the notice of appeal in the mail at the prison b e f o re the expiration of the thirty-day filing period.. The Court denied the motion stating th a t it had declined to adopt the prison mail-box rule and Petitioner's statement that he m a ile d the notice did not establish good cause for his failure to file the notice in a timely m a n n e r. Id. " F e d e ra l courts may not grant habeas relief based on procedurally defaulted claims if the state court's reason for finding default rests on adequate and independent state

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grounds." Wooten v. Norris, 578 F.3d 767, 777 (8th Cir. 2009) (citing Niederstadt v. N ix o n , 505 F.3d 832, 835 (8th Cir. 2007)). In this case, the Arkansas Supreme Court's o rd e r denying Petitioner's belated appeal of the trial court's Rule 37 order and the Court's re f u s a l to apply the prison mail-box rule are adequate and independent state grounds to p ro c e d u ra lly bar Petitioner's ineffective assistance of counsel claims and his perjured te s tim o n y claim. Consequently, the Court can hear these claims only if Petitioner can e s ta b lis h "cause for the default and actual prejudice as a result of the alleged violation of f e d e ra l law, or demonstrate that failure to consider the claims will result in a fundamental m isc a rria g e 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] c o u n s e l's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U .S . 478, 488, 106 S.Ct. 2639 (1986). Petitioner claims his default was caused by the A rk a n sa s Department of Correction's failure to mail or the Pulaski County Circuit Clerk's f a ilu re to file his notice of appeal in a timely manner. In his reply to Respondent's p ro c e d u ra l default argument, Plaintiff claims he mailed his notice of appeal on September 2 1 , 2007, before the September 28, 2007 deadline. The notice was not filed, however, u n til October 10, 2007. Citing Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379 (1988), Petitioner contends th a t the "prison mailbox rule" applies to his efforts and that the notice of appeal should

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have been deemed filed when he mailed it. The mail-box rule articulated in Houston a p p lie s to pro se pleadings filed in federal court. The Arkansas Supreme Court, however, h a s consistently declined to adopt such a rule for pleadings filed in its court. The Court m a d e this clear in its order denying Petitioner's motion to file a belated appeal when it s ta te d : We have declined to adopt the prison mail-box rule that is accepted in some c o u rts , and which provides that a pro se inmate files his or her petition at th e time the petition is placed in the hands of prison officials for mailing. Hamel v. State, 338 Ark. 769, 1 S.W.3d 434 (1999). An item tendered to a c o u rt is considered tendered on the date it is received and file marked by the c le rk , not on the date it may have been placed in the mail. Smith v. State, No. CR 07-12288, 2008 WL 384186, at *1. State procedural rules govern cases originating in state court. Cantrell v. Norris, 3 1 9 Fed. Appx. 442, (8th Cir. 2008)(citing Winkels v. George A. Hormel & Co., 874 F.2d 5 6 7 , 568 (8th Cir. 1989)). Other circuits considering this issue have held that, where a s ta te court has applied its own law to reject the application of the "prison mailbox rule," f e d e ra l courts are obligated to defer to the state court's interpretation of its law and p ra c tic e . See Vroman v. Brigano, 346 F.3d 598, 604 (6th Cir. 2003) (leaving undisturbed th e Ohio Supreme Court's express rejection of "prison mailbox rule" and determination th a t state post-conviction motion was not timely filed); Coleman v. Johnson, 184 F.3d 3 9 8 , 403 (5th Cir. 1999), cert. denied, 529 U.S. 1057 (2000) (declining to extend "prison m a ilb o x rule" to determination of whether post-conviction motion was timely filed in s ta te court); Adams v. LeMaster, 223 F.3d 1177, 1181 (10th Cir. 2000) (question of 9

whether state post-conviction petition was properly filed was a question of state p ro c e d u ra l law). Because under Arkansas law and practice the prison mailbox rule does n o t apply, Plaintiff has not established cause and prejudice. B. 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. Wooten, 578 F.3d at 777. To establish a m isc a rria g e of justice, a petitioner must present new evidence that affirmatively d e m o n s tra te s he is innocent of the crime for which he was convicted. Id. (citing Schlup v. D e lo , 513 U.S. 298, 326-30, 115 S.Ct. 851 (1995)). A claim of actual innocence sufficient to overcome procedural default requires that a petitioner "support his allegation of constitutional error with new reliable evidence. . . ." Schlup, 513 U.S. at 324. Actual innocence may be established by a credible declaration o f guilt by another, a trustworthy eyewitness account, or exculpatory scientific evidence. Id. The burden is on the a petitioner to show that "it is more likely than not that no re a s o n a b le juror would have convicted him in the light of the new evidence." Id. at 327. A s new evidence of actual innocence, Petitioner points to the testimony of C a m e ro n Braswell. At Petitioner's March, 2006 trial, Mr. Braswell testified that, while in c u s to d y at the Pulaski County Regional Detention Facility, he overheard a conversation b e tw e e n the Petitioner and Lenzie Sanders, another detainee, in which Petitioner admitted to killing the victim. Mr. Braswell recanted his testimony in a separate trial held in April,

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2006, and was later charged and convicted of perjury in connection with his testimony in th e Petitioner's case. Petitioner's actual innocence claim fails for two reasons. First, the recanted te s tim o n y claim is not "new"evidence. Petitioner could have, but did not, raise the issue o f the recanted testimony on direct appeal of his conviction with the Arkansas Court of A p p e a ls . In his brief to the Court, which was filed four months after Mr. Braswell re c a n te d his testimony, Petitioner claimed insufficient evidence to support the conviction b u t did not mention Mr. Braswell's recanted testimony as part of his claim or raise it as a s e p a ra te claim of a constitutional violation. See Cox v. Burger, 398 F.3d 1025, (8th Cir. 2 0 0 5 ) (affirming district court's determination that petitioner had procedurally defaulted h is recantation claim by failing to raise it in his state appeal as a constitutional error). Petitioner did raise the perjured testimony argument in his Rule 37 petition that w a s denied by the trial court, but he failed to appeal the trial court's order in a timely m a n n e r. Consequently, the evidence of innocence Petitioner is offering is not new and c o u ld have been raised in earlier state court proceedings. Second, under Schlup, Petitioner must show "it is more likely than not that no re a s o n a b le juror would have convicted him in light of the new evidence." Schlup, 513 U .S . at 327.1 Petitioner has not met this burden. The prosecution offered testimony from

U n d e r Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853 (1993), Petitioner's burden o f proof to establish a substantive claim of actual innocence is higher than under Schlup b e c a u s e he must come forward with a "truly persuasive demonstrations of actual 11

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an eye witness who stated she had seen the butt of a handgun protruding from the P e titio n e r's right pocket prior to his getting into the truck where he was seated directly b e h in d the victim. The same witness testified that shots were fired from the back left side o f the vehicle where Petitioner was sitting. Dr. Frank Paretti, a forensic pathologist, te s tif ie d that, among other wounds, the victim was shot in the back of the neck from a d is ta n c e of less than one inch and the paths of the bullets were consistent with having b e e n fired by someone directly behind the victim. Smith v. State, CACR 06-700, 2007 W L 404654, at *1 (Feb. 7, 2007); (#5-3 at p. 1; #9 at p. 99) F u rth e r, the reliability of Mr. Braswell's testimony was called into question at trial w h e n the defense called Lenzie Sanders, the detainee to whom Petitioner allegedly c o n f e s s e d , and Mr. Sanders testified that he talked to Petitioner for about a minute at the P u la s k i County Jail but that Petitioner had not confessed to killing the victim during that c o n v e rs a tio n . (Respondent's Exhibit G-2 at p. 514) Reviewing the record as a whole, Mr. Braswell's testimony was relevant and im p o rta n t but was not central to Petitioner's conviction. Petitioner has not established a " re a s o n a b le probability" that a jury would have acquitted him without Mr. Braswell's te s tim o n y. Accordingly, the Court recommends that the District Court dismiss P e titio n e r's ineffective assistance of counsel claims and perjured testimony claim as

in n o c e n c e ." Herrera, 506 U.S. at 426-27. Accordingly, to the extent Petitioner is raising a substantive claim of innocence under Herrera, he has not met his burden of proof. 12

procedurally defaulted. See Wooten, 578 F.3d at 781-82 (affirming district court's d e te rm in a tio n that claims were procedurally barred because, after reviewing the record as a whole, new evidence did not create a reasonable probability that a jury would have a c q u itte d the petitioner)(citing Schlup, 513 U.S. at 327); see also Cox, 398 F.3d 1031-32. V. S u ffic ie n c y of the Evidence R e a d in g Petitioner's reply to the response in the light most favorable to Petitioner, h e appears to again challenge the sufficiency of the evidence to support his conviction. In h is brief filed on direct appeal of his conviction, Petitioner admitted that he was seated in th e back passenger seat behind the victim, but argued there was no evidence presented at tria l that he knowingly shot the victim. Petitioner claimed the eye witness, Frances Robinson, never stated she actually s a w Petitioner shoot the victim but only that she saw bullets coming from the back, left s id e of the vehicle. Petitioner questioned the reliability of Ms. Robinson's testimony due to the fact that she admitted that she had been drinking and taking drugs earlier in the day. The Arkansas Court of Appeals rejected Petitioner's argument and affirmed his c o n v ic tio n . Smith v. State, CACR 06-700, 2007 WL 404654, at *1 (Feb. 7, 2007). " W h e n a claim has been adjudicated on the merits in state court, habeas relief is w a rra n te d only if the state court proceeding resulted in: (1) a decision that was contrary to , or involved an unreasonable application of, clearly established Federal law, as d e te rm in e d by the Supreme Court; or (2) a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in the State court p ro c e e d 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 la w 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, 4 1 2 -1 3 , 120 S.Ct. 1495 (2000). A decision is "an unreasonable application" of federal la w "if the state court identifies the correct governing legal principle from the [United S ta te s Supreme] Court's decisions but unreasonably applies that principle to the facts of th e prisoner's case." Id. at 413. In this case, the legal standard applied by the Arkansas C o u rt of Appeals is not contrary to applicable United States Supreme Court law. In assessing a habeas petition claiming insufficient evidence to support a state c o u rt conviction, the scope of federal review is limited. Sera v. Norris, 400 F.3d 538, 543 (8 th Cir. 2005) (quoting Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003)). It is n o t relevant whether this Court believes that evidence introduced at trial established guilt b e yo n d a reasonable doubt. Id. Instead, this Court must determine "whether, after v ie w in g the evidence in the light most favorable to the prosecution, any rational trier of

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fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). T h e substantive elements of state crimes are defined by state law. Jackson, 443 U .S . at 324 n. 16. Under Arkansas law, a person commits murder in the second degree if h e : (1) knowingly causes the death of another person under circumstances manifesting e x tre m e indifference to the value of human life; or (2) with the purpose of causing serious p h ys ic a l injury to another person, causes the death of any person. ARK. CODE ANN. § 51 0 -1 0 3 . In making his actual innocence argument in his reply to the response, Petitioner claims: (1) the identification testimony of the eye witness, Frances Robinson, was weak; (2 ) Ms. Robinson was under the influence of drugs and alcohol; (3) Ms. Robinson never s ta te d that she saw him shoot the victim; and (4) his fingerprints were not found on the v e h ic le . (#9 at pp. 6-7) Three of Petitioner's four claims challenge the credibility and inconsistencies in th e testimony of the state's witnesses. Credibility, however, is for the jury to decide. Upon review of the evidence presented to the jury, the Court must presume the jury re s o lv e d any conflicting inference in favor of the prosecution. Williams v. Norris, 576 F .3 d 850, 871 (8th Cir. 2009) (citing Jackson, 443 U.S. at 326). As set forth above, there was evidence presented at trial that Petitioner possessed a g u n shortly before the shooting, that the shots were fired from the back left side of the

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truck where Petitioner was sitting, and that the victim's wounds were consistent with b e in g shot by someone sitting directly behind him. After reviewing the trial evidence in the light most favorable to the prosecution, th e Court believes a rational trier of fact could have found, beyond a reasonable doubt, th e elements of second degree murder. Accordingly, the Court recommends that the D is tric t Court dismiss Petitioner's sufficiency of the evidence claim. V I. C o n c lu s io n T h e Court recommends that the District Court dismiss Petitioner's petition for writ o f habeas corpus (#2) with prejudice. D A T E D this 8th day of October, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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