Smith v. Arkansas, State of
Filing
17
RECOMMENDED DISPOSITION recommending that the District Court dismiss with prejudice 1 Petitioner's Petition for Writ of Habeas Corpus. Signed by Magistrate Judge Beth Deere on 10/8/09. (hph)
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION D A N I E L SMITH A D C #140206 V S. NO. 5:08-CV-00288-SWW-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 ESPON D EN T
T h e following recommended disposition has been sent to United States District J u d g e Susan Webber Wright. 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 s is 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. M a il 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 1
II.
B ackground O n October 22, 2007, Petitioner Daniel Smith pleaded guilty to first degree murder
a n d was sentenced to life in prison in the Arkansas Department of Correction ("ADC"). (D o c k e t entry #13) Following entry of the Judgment, Petitioner did not seek postc o n v ic tio n relief with the trial court under Arkansas Rule of Criminal Procedure 37. Petitioner filed this § 2254 petition for writ of habeas corpus claiming he is in c a rc e ra te d in violation of his Fifth, Sixth, and Fourteenth Amendment rights guaranteed in the Constitution of the United States. (#1 at pp. 5-8) Specifically, Petitioner claims his F if th Amendment rights were violated because his interrogation continued after he had re q u e s te d an attorney and the presence of a parent or guardian. (#1 at p. 8) Petitioner also claims ineffective assistance of counsel because his attorney: (1) did not file a motion to suppress his illegally obtained confession; (2) failed to reveal th e existence of a plea offer; (3) failed to investigate his case; and (4) failed to perfect an a p p e a l after his conviction. (#1 at p. 5) Finally, Petitioner claims his due process rights w e re violated when his attorney failed to advise him of a written plea offer. (#1 at p. 6) In his response to the petition (#16-2), Director Norris argues the Petitioner's c la im s are procedurally barred. (#16-2 at pp. 2-3) Petitioner has not replied to the re s p o n s e . For the reasons set forth below, the Court recommends that the District Court d is m is s the petition with prejudice.
2
III.
P r o c e d u r a l Default B e f o re seeking federal habeas review, a state prisoner must first fairly present the
s u b s ta 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 rre 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) and Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir. 2005)). Claims in a federal habeas petition not presented in the state court proceedings and f o r which there is no remaining state court remedy are defaulted, and a habeas petitioner's d e f a u lt will be excused only if he can "demonstrate cause for the default and actual p re ju d ic e as a result of the alleged violation of federal law, or demonstrate that failure to c o n s id e r the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991). If no cause has been shown, th e prejudice element need not be addressed. McCleskey v. Zant, 499 U.S. 467, 502, 111 S .C t. 1454, 1474 (1991). In this case, Petitioner pleaded guilty to the charges that led to his sentence. Accordingly, he could not file a direct appeal of his conviction. See ARK. R. APP. P. C RIM. 1(a). Additionally, Petitioner never attempted to bring a Rule 37 petition before the
3
trial court. (#9 at p. 1) Consequently, all of the claims Petitioner raises are procedurally d e f a u lte d unless he can establish "cause for the default and actual prejudice as a result of th e alleged violation of federal law, or demonstrate that failure to consider the claims will re s u 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
In his Petition, Mr. Smith claims his default was caused by his attorney's failure to f ile an appeal on his behalf after he requested that she do so. This does not constitute c a u s e . Rather, cause is established when "some objective factor external to the defense im p e d e [ s ] . . . efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U .S . 478, 488, 106 S.Ct. 2639 (1986). 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. a t 488. An Arkansas defendant would be entitled to assistance of counsel on a direct a p p e a l of his conviction. In this case, however, Petitioner waived his right to a direct a p p e a l when he pleaded guilty. Petitioner is not constitutionally entitled to effective assistance of counsel in state p o s t-c o n v ic tio n proceedings. See Coleman, 501 U.S. at 752. Consequently, any postc o n v ic tio n advice Petitioner received from his attorney or actions taken or not taken by h is attorney cannot constitute cause for a procedural default. See Nolan v. Armontrout,
4
973 F.2d 615, 616-17 (8th Cir. 1992); Lamp v. State of Iowa, 122 F.3d 1100, 1105 (8th C ir. 1997). 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. 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. 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. Cagel v. Norris, 474 F.3d 1090, 1 0 9 9 (8th Cir. 2007) (quoting Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851 (1995)). Petitioner has not come forward with any new evidence of actual innocence in order to o v e rc o m e 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 e titio n for writ of habeas corpus (#1).
5
DATED this 8th day of October, 2009.
____________________________________ UNITED STATES MAGISTRATE JUDGE
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?