Wade v. Norris

Filing 11

MEMORANDUM OPINION AND ORDER denying Detriawn R Wade's Petition for Writ of Habeas Corpus and dismissing it with prejudice. Signed by Magistrate Judge Beth Deere on 4/7/10. (hph)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION D E T R I A W N R. WADE A D C #137948 v. CASE NO.: 5:09CV00222 BD P E T IT IO N E R

R A Y HOBBS, Interim Director,1 A r k a n s a s Department of Correction M E M O R A N D U M OPINION AND ORDER

R ESPON D EN T

P e titio n e r Detriawn Wade filed this pro se petition for writ of habeas corpus (d o c k e t entry #2) under 28 U.S.C. § 2254, challenging the extension and revocation of his p ro b a tio n and alleging ineffective assistance of counsel. Respondent filed a Response (# 7 ) to the petition and Petitioner replied (#8). For the following reasons, the petition is D E N IE D and DISMISSED with prejudice. I. B ackground: O n February 12, 2001, Petitioner pled guilty in Crittenden County Circuit Court to c a rn a l abuse in the third degree (docket entry #7-3). Petitioner was sentenced to three y e a rs of probation and was assessed fines. On April 29, 2004, the Crittenden County C irc u it Court revoked Petitioner's probation and sentenced him to six years of probation a n d assessed additional fines (#7-4). Petitioner did not appeal either judgment.

In the Petition (#2), Petitioner names Larry Norris as Respondent. Under Rule 2 o f the Rules Governing § 2254 Cases in United States District Courts, the proper R e sp o n d e n t is the state officer who has custody of Petitioner. That officer is currently R a y Hobbs, Interim Director of the Arkansas Department of Correction. Accordingly, the C le rk is instructed to substitute Mr. Hobbs as the Respondent

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On January 5, 2007, the Crittenden County Circuit Court revoked Petitioner's p ro b a tio n and sentenced him to six years of imprisonment (#7-5). After the revocation h e a rin g , the trial court found that Petitioner had violated the conditions of his probation b y failing to pay fines and by raping a thirteen-year-old girl. Petitioner appealed, arguing th a t: (1) the trial court erred in allowing the State to admit a fine and cost sheet into e v id e n c e ;2 (2) the evidence of willful failure to pay a fine was insufficient to revoke p ro b a tio n ; (3) the evidence of rape was insufficient to revoke probation; (4) the trial court v io la te d his Sixth Amendment right to confrontation by admitting a paternity report into e v id e n c e ; and (5) the trial court erred by sustaining a hearsay objection. Wade v. State, N o . CACR 07-615, 2008 WL 907634 (Ark.App., affirmed April 2, 2008). O n December 20, 2007, Petitioner filed a petition for writ of error coram nobis in C ritte n d e n County Circuit Court (#7-8). The court denied the petition on June 5, 2008 (# 7 -8 , p. 9-10). O n June 11, 2008, Petitioner filed a petition to correct an illegal sentence, which th e Crittenden County Circuit Court denied on June 20, 2008 (#7-9). Petitioner then filed a petition for writ of habeas corpus in the Jefferson County Circuit Court on March 26, 2 0 0 9 . The court denied the petition on July 9, 2009 (#7-10). Petitioner did not appeal a n y of the denials of his post-conviction petitions.

The Arkansas Court of Appeals found that Petitioner abandoned this argument. W a d e v. State, No. CACR 07-615, 2008 WL 907634 (Ark.App. April 2, 2008). 2

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Petitioner was convicted of raping a thirteen-year-old girl in a separate trial. Wade v . State, 2009 Ark.App. 346, 2009 WL 1151757 (April 29, 2009). He does not challenge th is separate rape conviction in this petition. Instead, he challenges the revocation of his p ro b a tio n , which was based in part on his committing rape while on probation. P e titio n e r filed this § 2254 petition for writ of habeas corpus claiming: (1) the C ritte n d e n County Circuit Court should not have extended his probation on April 29, 2 0 0 4 ; (2) the Crittenden County Circuit Court should not have revoked his probation on J a n u a ry 5, 2007; (3) he paid the fines and costs before the April 24, 2004 hearing, leaving n o reason to extend probation; (4) the trial court should not have assessed an additional fin e and costs on April 29, 2004; and (5) his counsel provided ineffective assistance d u rin g the appeal (#2, p. 4-5). In response to the petition (#7), Respondent argues that Petitioner's claims are p ro c e d u ra lly defaulted; that they concern alleged violations of state law, not violations of th e Constitution, laws or treaties of the United States, as required by 28 U.S.C. § 2254; a n d that the claims lack merit. Petitioner replied to the response claiming that the trial c o u rt lost jurisdiction over his carnal abuse conviction (#8), and contends that he can raise a jurisdictional issue at any time and in any forum. He further contends that he properly e x h a u s te d state remedies by filing the state habeas petition in Jefferson County Circuit C o u r t.

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II.

P r o c e d u r a l Default: B e fo 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 fa 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). In this case, Petitioner pled guilty to the charges that led to his original probation. Accordingly, he could not file a direct appeal after the February 12, 2001 sentence. See A RK. R. APP. P. CRIM. 1(a). During his April 29, 2004 revocation hearing, Petitioner c o n te s te d the extension of his original probation and the assessment of additional fines. 4

However, Petitioner did not appeal the trial court's April 29, 2004 decision that he had v io la te d the terms of his probation; nor did he appeal the extension of probation or the a s s e s sm e n t of additional fines ­ three of the five grounds presented in this petition for fe d e ra l habeas relief.3 A fourth ground for relief ­ that the trial court erred in revoking his probation in 2 0 0 7 ­ is based entirely on the allegedly erroneous extension of his probation in 2004. According to Petitioner, had his probation not been wrongfully extended in 2004, he w o u ld not have been on probation in 2007, when he raped the thirteen-year-old, and he would not have been in a position to have his probation revoked. Ergo, the January 5, 2 0 0 7 revocation was invalid, per Petitioner's argument. (#2, p. 4). When Petitioner appealed the January 5, 2007 probation revocation, however, he fa ile d to raise this issue. If the invalid extension of Petitioner's probation in 2004 was in d e e d the cause of his 2007 probation revocation, Petitioner should have raised this issue in his direct appeal of the 2007 revocation. See Cross v. State, 2009 Ark. 597, 2009 WL 4 4 0 3 2 4 4 (Dec. 3, 2009). He did not. Instead, Petitioner filed various post-conviction p e titio n s .

Grounds one, three, and four allege respectively that: the Crittenden County C irc u it Court should not have extended Petitioner's probation on April 29, 2004; he paid th e fines and costs before the April 24, 2004 hearing, leaving no reason to extend p ro b a tio n ; and, the trial court should not have assessed an additional fine and costs on A p ril 29, 2004 (#2, p. 4-5). 5

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On December 20, 2007, Petitioner filed a petition for writ of error coram nobis in C ritte n d e n County Circuit Court (#7-8). In the petition for writ, Petitioner contested the 2 0 0 4 extension of his probation. This appears to be the first time Petitioner contested the 2 0 0 4 extension, outside of the hearing where he objected to the revocation and extension o f his probation. However, Petitioner relied exclusively on Arkansas law in that petition. The court denied the petition on June 5, 2008 (#7-8, p. 9-10), and Petitioner did not a p p e a l. O n June 11, 2008, Petitioner filed a petition to correct an illegal sentence, c o n te s tin g the April 2004 probation extension (#7-9). Petitioner again relied exclusively o n Arkansas law in contesting the 2004 probation extension. The Crittenden County C irc u it Court denied the petition on June 20, 2008. Petitioner did not appeal. Petitioner filed a petition for writ of habeas corpus in the Jefferson County Circuit C o u rt on March 26, 2009 (#7-10). He again challenged the 2004 probation extension and a g a in relied solely on Arkansas law. He failed to allege a violation of the United States C o n s titu tio n or of federal law. The court denied the petition on July 9, 2009. Petitioner d id not appeal. P e titio n e r's last ground for relief, ineffective assistance of counsel on appeal, was ra ise d for the first time in the pending petition (#2, p. 5). He did not file any postc o n v ic tio n petitions or appeals regarding this issue. To properly exhaust state remedies, a petitioner must present "his or her claims th ro u g h one complete round of the State's established appellate review process." 6

Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 2387 (2006). Petitioner did not a d v a n c e the pending grounds for relief in his appeal, although he did raise these claims in p o s t-c o n v ic tio n petitions. To properly exhaust an available state post-conviction remedy, h o w e v e r, a petitioner still must "use the State's established appellate review procedures." Armstrong v. Iowa, 418 F.3d 924, 925-926 (8th Cir. 2005) (quoting O'Sullivan v. B o e r c k e l, 526 U.S. 838, 845, 119 S.Ct. 1728 (1999)). Petitioner did not properly exhaust any of the grounds for relief presented in the p e n d in g petition. Failure to properly exhaust a ground for relief results in procedural d e fa u lt, which generally precludes federal habeas review of the defaulted claim. Woodford, 548 U.S. at 92. Consequently, Petitioner's claims are procedurally defaulted u n le s s he can establish "cause for the default and actual prejudice as a result of the a lle g e d 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. A. C a u s e and Prejudice

In reply to Respondent's procedural default argument, Plaintiff claims that the trial c o u rt lost jurisdiction over his probation for carnal abuse (#8). He argues that he may ra ise a jurisdictional issue at any time and in any forum. Regarding exhaustion, Petitioner s ta te s that he properly exhausted his state remedies by filing the state habeas petition in J e ffe rs o n County Circuit Court. He also alleges ineffective assistance of counsel on a p p e a l (#2). None of these arguments, however, constitute cause.

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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, c o n s titu tio n a lly entitled to assistance of counsel in state post-conviction proceedings. See C o le m a n , 501 U.S. at 752. Consequently, any post-conviction advice Petitioner received fro m his attorney cannot constitute cause for a procedural default. See Armstrong, 418 F .3 d at 927 (citing Nolan v. Armantrout, 973 F.2d 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 raised ineffective assistance of c o u n s e l for the first time in the pending petition. Accordingly, ineffective assistance of c o u n s e l cannot be cause for Petitioner's procedural default. Petitioner asserts that he exhausted his state remedies by filing the state petition for w rit of habeas corpus. However, he did not properly exhaust. See Armstrong, 418 F.3d a t 925-926 (petitioner must use the State's established appellate review procedures to p ro p e rly exhaust an available state post-conviction remedy). Petitioner raised a jurisdictional argument in his post-conviction petitions. He felt it redundant, however, to appeal his post-conviction petitions to the same court that 8

denied his direct appeal (#2, p. 3). While Petitioner correctly contends that he cannot w a iv e lack of jurisdiction, he incorrectly assumes that he can raise the issue in any forum, a t any time. "Jurisdiction is no exception to the general rule that federal courts will not e n g a g e in collateral review of state court decisions based on state law." Beaulieu, 583 F .3 d at 574 (quoting Poe v. Caspari, 39 F.3d 204, 207 (8th Cir.1994)). A jurisdictional c la im does not preclude a finding of procedural default. Beaulieu, 583 F.3d at 574. Accordingly, Petitioner procedurally defaulted this claim. Because Petitioner has not e s ta b lis h e d cause for his default, the Court will not address prejudice. B. M is c a r r ia g e of Justice

P e titio n e r 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 evidence of actual innocence. He pled guilty to c a rn a l abuse and in a later trial was found guilty of raping of a minor. Technical v io la tio n s of state law, as alleged by Petitioner, do not evidence actual innocence. Accordingly, Petitioner has failed to overcome his procedural default.

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III.

C o n c lu s io n : P e titio n e r procedurally defaulted the claims he brings in the pending petition.

Accordingly, Detriawn R. Wade's Petition for Writ of Habeas Corpus (#2) is DENIED a n d DISMISSED with prejudice. IT IS SO ORDERED this 7th day of April, 2010.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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