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.

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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

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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,

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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).

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DATED this 8th day of October, 2009.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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