Wade v. Norris
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
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
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.
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
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.
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.
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
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?