Roam v. Norris

Filing 15

RECOMMENDED DISPOSITION recommending that the District Court dismiss with prejudice 2 Petitioner's Petition for Writ of Habeas Corpus and deny 13 Petitioner's renewed request for production of documents and motion for appointment of counsel as moot. Objections to R&R due no later than 14 days from the date the Recommended Disposition is received. Signed by Magistrate Judge Beth Deere on 1/5/10. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION R O B E R T L. ROAM, ADC #69777 V S. NO. 5:08-CV-00344-JLH-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 Chief United States D is tric t J. Leon Holmes. 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 fourteen (1 4 ) 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. 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

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II.

B ackground: O n May 12, 2008, Petitioner Robert L. Roam pled guilty in Sebastian County

C irc u it Court to two counts of delivery of methamphetamine, possession of drug p a ra p h e rn a lia , and possession of methamphetamine with intent to deliver. (Docket entry # 5 -2 ) Petitioner was sentenced to 300 months' imprisonment with 180 months suspended f o r the delivery of methamphetamine and possession with intent to deliver convictions a n d 120 months' imprisonment for possession of drug paraphernalia. The trial court e n te re d the Judgment and Commitment order on May 16, 2008. (#5-2) On May 28, 2008, Petitioner filed a motion to withdraw his guilty plea with the tria l court under Arkansas Rule of Criminal Procedure 26.1. (#5-3) On June 12, 2008, th e trial court entered an order denying the motion as untimely. Petitioner filed a timely notice of appeal with the Arkansas Supreme Court seeking re v ie w of the trial court's order denying his motion to withdraw his guilty plea. On S e p te m b e r 2, 2008, the trial court granted Petitioner an extension of time until November 3 , 2008, in which to lodge the record for his appeal. Petitioner, however, never lodged th e record with the Arkansas Supreme Court in order to perfect his appeal. O n November 10, 2008, Petitioner tendered a "Motion for Belated Appeal of M o tio n to Withdraw Guilty Plea" to the Arkansas Supreme Court. (#12-2) In the M o tio n , Petitioner alleged that he could not lodge the record because the trial court d e n ie d him a copy of his trial record at the public's expense. The Arkansas Supreme

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Court did not file the motion but sent a letter to the Petitioner advising him that the m o tio n could not be filed until he provided a certified copy of the original judgment, the m o tio n to withdraw, the order denying the motion, and the notice of appeal. (#12-3) There is no evidence in the record that Petitioner ever provided the Arkansas Supreme C o u rt with the documents necessary to file his motion. F o llo w in g entry of the Judgment, Petitioner did not seek post-conviction relief w ith the trial court under Arkansas Rule of Criminal Procedure 37. (#5-7) P e titio n e r filed this § 2254 petition for writ of habeas corpus claiming: (1) his c o n v ic tio n was obtained by a plea of guilty that was unlawfully induced and not made v o lu n ta rily; (2) his conviction was obtained by the unconstitutional failure of the p ro s e c u to r to disclose evidence favorable to his defense; (3) ineffective assistance of c o u n s e l; and (4) he was denied his right of appeal when the trial court and its clerk denied h im free copies of his trial transcript. In response to the petition (#5), Respondent argues that Petitioner's first three c la im s are procedurally barred and that Petitioner's fourth claim does not allege a v io la tio n of the Constitution, laws or treaties of the United States, as required by 28 U .S .C . § 2254. Petitioner replied to the response claiming that his attorney caused his d e f a u lt by failing to advise him to file a state post-conviction petition, and the Sebastian C o u n ty Circuit Court and its Clerk caused his default by denying him a free copy of the

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trial transcript so that he could perfect his appeal. (#11) For the reasons set forth below, th e Court recommends that the District Court dismiss the petition with prejudice. 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 them an opportunity to pass upon and correct a n y constitutional errors. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347 (2004); see a ls o 28 U.S.C. § 2254(b) and (c). "[A] federal habeas petitioner's claims must rely on the s a m e factual and legal bases relied on in state court." Interiano v. Dormire, 471 F.3d 8 5 4 , 856 (8th Cir. 2006) (citing Winfield v. Roper, 460 F.3d 1026, 1034 (8th Cir. 2006) a n d Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir. 2005)). Claims raised in a federal habeas petition that were not presented in state court p ro c e e d in g s and for which there is no remaining state court remedy are defaulted, and a h a b e a s petitioner's default will be excused only if he can "demonstrate cause for the d e f a u lt and actual prejudice as a result of the alleged violation of federal law, or d e m o n s tra te that failure to consider the claims will result in a fundamental miscarriage of ju s tic e ." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991). If no c a u s e has been shown, the prejudice element need not be addressed. McCleskey v. Zant, 4 9 9 U.S. 467, 502, 111 S.Ct. 1454, 1474 (1991).

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In this case, Petitioner pled 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). Petitioner did file a motion to withdraw his guilty plea. The trial court, h o w e v e r, denied the motion as untimely, and Petitioner failed to perfect an appeal of the tria l court's order. Additionally, Petitioner never attempted to bring a Rule 37 petition b e f o re the trial court. Consequently, Petitioner's claims are procedurally defaulted unless h e can establish "cause for the default and actual prejudice as a result of the alleged v io la tio n of federal law, or demonstrate that failure to consider the claims will result in a f u n d a m e n ta l miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991). A. C a u s e and Prejudice

In his reply to respondent's procedural default argument, Plaintiff claims his d e f a u lt was caused by his attorney and by the trial court's refusal to provide him with a f re e copy of his trial transcript so that he could perfect his appeal. Neither of these c irc u m s ta n c e s , however, constitutes cause. Cause 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). In proceedings in which the Sixth Amendment re q u ire s legal representation, ineffective assistance of counsel can be cause for a p ro c e d u ra l default. Murray, 477 U.S. at 488. A defendant is not, however,

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constitutionally entitled to effective assistance of counsel in state post-conviction p ro c e e d in g s . See Coleman, 501 U.S. at 752. Consequently, any post-conviction advice P e titio n e r received from his attorney cannot constitute cause for a procedural default. See A rm s tr o n g v. Iowa, 418 F.3d 924, 927 (8th Cir. 2005) (citing Nolan v. Armantrout, 973 F .2 d 615, 617 (8th Cir. 1992)). Further, a claim of ineffective assistance must be presented to the state courts as an in d e p e n d e n t claim before it may be used to establish cause for a procedural default. B e a u lie u v. Minnesota, 583 F.3d 570, 575 (8th Cir. 2009) (quoting Taylor v. Bowersox, 3 2 9 F.3d 963, 971 (8th Cir. 2003)). In this case, Petitioner did not file a Rule 37 petition w ith the trial court alleging ineffective assistance of counsel. Accordingly, ineffective a s s is ta n c e of counsel cannot be cause for Petitioner's procedural default. P e titio n e r claims that the trial court and its clerk prevented him from complying w ith the State's procedural rules because, even though he was proceeding in forma p a u p e ris , the state trial court denied his request for a free transcript of the proceedings so th a t he could perfect his appeal. The Eighth Circuit Court of Appeals has held that a state c a n constitutionally deny an indigent prisoner a free trial transcript unless the petitioner c a n show that the issues on appeal are not frivolous and that the transcript is required to d e c id e the issues. See Smith v. Lockhart, 882 F.2d 331 (8th Cir. 1989); United States v. L e w is , 605 F.2d 379, 380 (8th Cir. 1979).

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In this case, Petitioner has not demonstrated that he made such a showing to the tria l court. (#12-4) Thus, the trial court's failure to provide a free transcript and the A rk a n sa s Supreme Court's refusal to file his motion to file a belated appeal without a p a rtia l record is not "interference by officials" sufficient to constitute "cause" for P e titio n e r's procedural default. See Sherron v. Norris, 69 F.3d 285, 289 (8th Cir. 1995) (p ro se status and refusal of the state court to give him a copy of the transcript without a s h o w in g that issues on appeal were non-frivolous and transcript was required to decide th e issue did not constitute cause for default). B e c a u s e Petitioner has not established cause for his default, the Court will not a d d re s s 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. 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)). P e titio n e r 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.

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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 e titio n for writ of habeas corpus (#1) and deny Petitioner's renewed request for p ro d u c tio n of documents and motion for appointment of counsel (#13) as moot. D A T E D this 5th day of January, 2010.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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