Darrough v. Norris

Filing 19

RECOMMENDED DISPOSITION recommending that the District Court dismiss with prejudice 2 Petitioner's writ of habeas corpus and 17 Petitioner's amended petition. Signed by Magistrate Judge Beth Deere on 10/23/09. (hph)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION K E D R I C K TREVON DARROUGH, SR. A D C #137735 v. C A S E NO.: 5:08CV00303 SWW/BD PETITIONER

L A R R Y NORRIS, D ir e c to r , 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

RESPONDENT

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: C le rk , 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

Kedrick Trevon Darrough, Sr., an Arkansas Department of Correction ("ADC") in m a te , brings this petition for writ of habeas corpus (#2) and amended petition for writ o f habeas corpus (#17) under 28 U.S.C. § 2254. For the reasons that follow, the Court re c o m m e n d s that the District Court dismiss Petitioner's petition and amended petition. II. B ackground O n January 24, 2005, Officer Ben Hines, with the Tenth Judicial District Drug T a sk Force, received a telephone call from a confidential informant. The informant p ro v id e d officers with the color, make, and model of a vehicle that was being driven by M a rlo Perry, from Wilmar, Arkansas. The informant stated there was a large amount of c o c a in e and marijuana in the vehicle. (#8-6 at p. 34) After receiving the information, Officer Hines and another officer waited for the v e h ic le . After identifying a vehicle driven by Mr. Perry that met the description provided b y the informant, the officers initiated a traffic stop. (#8-3 at p. 35) Officer Hines te s tif ie d that after stopping the vehicle, the officers approached the car on both the d riv e r's side and the passenger's side. (#8-3 at p. 36) After the officer asked Petitioner to g e t out of the passenger side of the vehicle, Petitioner picked up a large black garbage bag th a t was between him and the center console. Officer Hines testified that after getting out o f the vehicle, Petitioner threw the garbage bag on the ground, and stated "[t]his is what yo u 're looking for anyway." (#8-3 at p. 36) Officer Hines looked in the bag and saw w h a t he believed to be marijuana and cocaine. He then seized the bag and delivered it to

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the Arkansas State Crime Lab, which confirmed that the bag contained marijuana and c o c a in e base. (#8-3 at pp. 48-50) P e titio n e r's trial counsel filed a pre-trial discovery motion seeking the identity of th e confidential informant (#8-2 at p. 27), but the prosecutor did not disclose the in f o rm a n t's name before or during the trial. Petitioner's trial counsel also filed a motion to suppress the drugs seized during the traffic stop. (#8-2 at pp. 48-49) The prosecutor re s p o n d e d that Petitioner lacked standing to challenge the traffic stop because he was a p a s s e n g e r in the vehicle which was owned by another person. Petitioner's trial counsel d id not pursue a hearing or ruling on the motion before or during the trial, and the drugs s e iz e d were admitted at trial. A Drew County jury found Petitioner guilty of possession of cocaine with intent to d e liv e r and possession of marijuana with intent to deliver and sentenced him to ninety ye a rs in the Arkansas Department of Correction. Darrough v. State, No. CR 08-357, 2 0 0 8 WL 4672296, at *1 (Oct. 23, 2008). Petitioner timely filed a direct appeal in which h e challenged the sufficiency of the evidence. The Arkansas Court of Appeals affirmed. Darrough v. State, CACR 07-233 2007 WL 3088253, at *2 (Oct. 24, 2007). P e titio n e r filed a timely post-conviction petition under Arkansas Rule of Criminal P ro c e d u re 37.1 in which he raised a claim of ineffective assistance of trial counsel. Petitioner claimed that his counsel was ineffective for not seeking disclosure of the id e n tity of the confidential informant and for failing to pursue suppression of the drugs

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seized in connection with the traffic stop. (#8-8 at pp. 11-12) Darrough v. State, 2008 W L 34672296 at *1. Citing Arkansas Rule of Criminal Procedure 17.5(b) and Eastin v. S ta te , 370 Ark. 10, 257 S.W.3d 58 (2007), the State argued that it was not required to d is c lo s e the informant's identity because the informant was not a witness and did not p a rtic ip a te in the offenses at issue. (#8-8 at p. 16-17) The trial court agreed and denied P e titio n e r's post-conviction petition without a hearing. Id. at *1-2. The trial court also d e n ie d Petitioner's claim that his counsel was ineffective for failing to pursue a motion to s u p p re s s noting that the Petitioner was a passenger in the vehicle and had not established s ta n d in g to challenge the traffic stop. Id. at *3. Petitioner appealed the denial of post-conviction relief to the Arkansas Supreme C o u rt claiming the trial court erred by denying the Rule 37.1 petition without holding an e v id e n tia ry hearing and in finding Petitioner's trial counsel was not ineffective for failing to obtain the identity of the confidential informant and to seek suppression of the drugs s e iz e d after the traffic stop. Id. at *1-2. The Arkansas Supreme Court affirmed. Id. at *3. The Arkansas Supreme Court found that both of Petitioner's ineffective assistance o f counsel claims were based on his unsupported claim that police fabricated the e x is te n c e of a confidential informant to legitimize a traffic stop made without probable c a u s e . Id. at *2. The Court agreed with the trial court that Petitioner had not presented a u th o rity substantiating that he was entitled to learn the identity of the confidential

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informant or any facts supporting his conclusory claim that the informant did not exist. Id. at *2. The Court also found that Plaintiff's ineffective assistance claim on the s u p p re s s io n motion was a thinly veiled request for a ruling on the admissibility of the d ru g s . Id. at *3. The Court stated that to the extent Petitioner had raised an ineffective a s s is ta n c e claim, he had failed to establish a legal basis to find that he had standing to o b je c t to the traffic stop under the Fourth Amendment, and trial counsel could not be f o u n d ineffective for failing to raise a meritless argument. Id. In his initial pro se habeas corpus petition, Petitioner raised four claims for relief: (1 ) his conviction was obtained using evidence that was obtained as a result of an u n c o n stitu tio n a l search and seizure; (2) his conviction was obtained using evidence o b ta in e d during an unlawful arrest; (3) his conviction was obtained by the u n c o n stitu tio n a l failure of the prosecution to disclose favorable evidence; and (4) ineffective assistance of counsel. After filing his initial petition, Petitioner retained counsel who filed an amended p e titio n (#17) claiming only ineffective assistance of trial counsel in violation of P e titio n e r's Sixth Amendment right to due process as incorporated by the Fourteenth

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Amendment. (#17 at p. 3) The Court will address only the fully exhausted ineffective a s s is ta n c e of counsel claim raised in the Petitioner's amended petition.1 III. S ta n d a r d of Review W h e n a claim has been adjudicated on the merits in state court, a petitioner must d e m o n s tra te that the state court proceeding resulted in "a decision that was contrary to, or in v o lv e d an unreasonable application of, clearly established Federal law, as determined b y the Supreme Court" or "a decision that was based on an unreasonable determination of th e facts in light of the evidence" presented in the State court proceeding. Williams v. N o r r is , 576 F.3d 850, 859 (8th Cir. 2009) (quoting 28 U.S.C. § 2254(d)(1) and (2)); see a ls o Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 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, 4121 3 , 120 S.Ct. 1495 (2000). A decision is "an unreasonable application" of federal law "if the state court id e n tif ie s the correct governing legal principle from [the United States Supreme] Court's

U n d e r Local Rule 5.5(e), a party who is represented by counsel must file the e n tire pleading as amended and may not incorporate any prior pleading by reference. Petitioner does not attempt to incorporate any of the claims from his initial petition into h is amended petition. Accordingly, the ineffective assistance of counsel claim is the P e titio n e r's only remaining claim. 6

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decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "In other words, it is not enough for us to conclude that, in our in d e p e n d e n t judgment, we would have applied federal law differently from the state c o u rt; the state court's application must have been objectively unreasonable." Rousan v. R o p e r, 436 F.3d 951, 956 (8th Cir. 2006) (citation omitted). In addition, in a federal habeas proceeding, a state court's factual findings are e n title d to a presumption of correctness, absent procedural error. Those findings may be s e t aside "only if they are not fairly supported by the record." Simmons v. Luebbers, 299 F .3 d 929, 942 (8th Cir. 2002) (quoting Purkett v. Elem., 514 U.S. 765, 769, 115 S.Ct. 1 7 6 9 (1995) and Middleton v. Roper, 455 F.3d 838, 845 (8th Cir. 2006)). IV. I n e ffe c tiv e Assistance of Counsel P e titio n e r claims the Arkansas Supreme Court's opinion is contrary to and an u n re a s o n a b le application of clearly established federal law because it failed to recognize th e inherent prejudice he suffered when his counsel failed to seek the identity of the c o n f id e n tia l informant and, in turn, suppression of the evidence seized based on a lack of p ro b a b le cause to search the vehicle. The Sixth Amendment guarantees criminal defendants the right to effective a s s is ta n c e of counsel. Ward v. Norris, 577 F.3d 925, 936 (8th Cir. 2009). To state a c la im for ineffective assistance of counsel, a habeas petitioner must demonstrate that

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counsel's representation was deficient and that the he suffered prejudice as a result. Id. (c itin g Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984)). The "benchmark for judging any claim of ineffectiveness must be whether c o u n s e l's conduct so undermined the proper functioning of the adversarial process that the tria l cannot be relied on as having produced a just result." Strickland at 686. To show p re ju d ic e , the petitioner must demonstrate that there is a reasonable probability that the o u tc o m e would have been different but for counsel's deficient performance. Ward, 577 F .3 d at 937. Strickland requires that a reviewing court presume that counsel's p e rf o rm a n c e fell "within the wide range of reasonable professional assistance" and that th e challenged conduct "might be considered sound trial strategy." Strickland, 466 U.S. a t 689. The Arkansas Supreme Court considered Petitioner's claim of ineffective a s s is ta n c e of counsel under the Strickland standard. The Court agreed with the trial court th a t Petitioner had not established that he was entitled to know the identity of the c o n f id e n tia l informant under Arkansas Rule of Criminal Procedure 17.5(b)2 because he

R u le 17.5(b) of the Arkansas Rules of Criminal Procedure provides: "Informants D is c lo s u re shall not be required of an informant's identity where his identity is a p ro s e c u tio n secret and a failure to disclose will not infringe upon the constitutional rights o f the defendant." The commentary provides: "Where an informant merely supplies in f o rm a tio n that steers a police investigation to the defendant so that the state's case s ta n d s or falls without the informant's testimony, and where the informant was not p re s e n t at the time of the illegal act charged, the Arkansas Supreme Court has held it is n o t error for the state to refuse to disclose the informant's identity." Ark. R. Crim. P. 1 7 .5 commentary (citing Shackleford v. State, 261 Ark. 721, 551 S.W.2d 205 (1977)). 8

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had not established that the informant had participated in the offenses at issue. Applying th e standard set forth in Strickland, the Court reasoned that, with no legal basis for d is c lo s u re of the informant's identity, trial counsel's performance could not be found to b e defective. Darrough, 2008 WL 4672296 at *2. T h e Arkansas Supreme Court also found that Petitioner had not established a legal b a s is for his standing to challenge the traffic stop under the Fourth Amendment. Again, th e Court reasoned that trial counsel "cannot be found to be ineffective for continuing to a rg u e a position that has no merit." Id. at *3 (citing Noel v. State, 342 Ark. 35, 26 S.W.3d 1 2 3 (2000)). T h e Arkansas Supreme Court's denial of Petitioner's ineffective assistance of c o u n s e l claim is not contrary to or an unreasonable application of Strickland or an u n re a s o n a b le determination of the facts presented at trial. V. C o n c lu s io n F o r the foregoing reasons, the Court recommends that the District Court dismiss w ith prejudice Petitioner's petition for writ of habeas corpus (#2) and amended petition (# 1 7 ). DATED this 23rd day of October, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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