White v. Norris

Filing 10

MEMORANDUM OPINION AND ORDER dismissing, with prejudice, 2 James White's Petition for Writ of Habeas Corpus. Signed by Magistrate Judge Beth Deere on 4/22/10. (hph)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION J A M E S WHITE A D C #136671 v. CASE NO.: 5:09CV00306 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 James White filed this pro se petition for writ of habeas corpus (docket e n try #2) under 28 U.S.C. 2254, alleging ineffective assistance of counsel during his tria l. Respondent has filed a Response (#7) to the petition. Petitioner has not replied. For the following reasons, the petition is DENIED and DISMISSED with prejudice. I. B ackground: O n July 18, 2006, a Pulaski County Circuit Court jury found Petitioner guilty of ra p e , fourth degree sexual assault, and knowingly exposing another person to human im m u n o d e fic ie n c y virus. Petitioner was sentenced to consecutive terms of life, thirty y e a rs , and six years in prison in the Arkansas Department of Correction (#7-2). Petitioner a p p e a le d , and the Arkansas Supreme Court affirmed the conviction and sentence on June 2 1 , 2007. White v. State, 370 Ark. 284, 259 S.W.3d 410 (2007). 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. 1 Petitioner timely filed a post-conviction petition, under Rule 37 of the Arkansas R u le s of Criminal Procedure, alleging ineffective assistance of counsel (#7-5). The P u la s k i County Circuit Court denied Petitioner's Rule 37 petition on December 19, 2007 (# 7 -6 ). Petitioner filed a timely notice of appeal on January 14, 2008 (#7-7).2 Petitioner, h o w e v e r, failed to lodge an appellate brief with the Arkansas Supreme Court (#7-10). Instead, Petitioner filed several motions for copies and materials (#7-9). On October 2, 2 0 0 8 , the Arkansas Supreme Court dismissed Petitioner's appeal for failure to file a brief. White v. State, No. CR 08-204, 2008 WL 4483010 (Ark. Oct. 2, 2008). Petitioner moved fo r reconsideration of the dismissal. The Arkansas Supreme Court denied Petitioner's m o tio n to reconsider on February 19, 2009. White v. State, No. CR 08-204, 2009 WL 4 9 1 5 8 7 (Ark. Feb. 19, 2009). O n October 1, 2009, Petitioner filed this 2254 petition for writ of habeas corpus a lle g in g various instances of ineffective assistance of counsel during his jury trial (#2). In re s p o n s e to the petition (#7), Respondent argues that Petitioner's claims are procedurally d e fa u lte d and time-barred. Petitioner has not replied to the response. 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 2 Petitioner filed a second notice of appeal on January 29, 2008 (#7-8). 2 any 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 filed a direct appeal from his Pulaski County Circuit Court c o n v ic tio n but did not raise a claim of ineffective assistance of counsel in this appeal. Instead, Petitioner raised his ineffective assistance of counsel claims in the Rule 37 postc o n v ic tio n petition he filed with the trial court. Procedural default applies to state post-conviction proceedings just as it applies to tria l and direct appeal proceedings. Kilmartin v. Kemna, 253 F.3d 1087, 1088 (8th Cir. 2 0 0 1 ) (citing Williams v. Lockhart, 873 F.2d 1129, 1130 (8th Cir.1989)). To properly e x h a u s t an available state post-conviction remedy, a petitioner must "use the State's 3 established appellate review procedures." Armstrong v. Iowa, 418 F.3d 924, 925-926 (8th C ir. 2005) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728 (1999)). "A claim is considered exhausted when the petitioner has afforded the highest state court a fair opportunity to rule on the factual and theoretical substance of his claim." Ashker v. L e a p le y , 5 F.3d 1178, 1179 (8th Cir. 1993) (citing Picard v. Connor, 404 U.S. 270, 2752 7 8 , 92 S.Ct. 509, 512-514 (1971). T h e Pulaski County Circuit Court denied Petitioner's Rule 37 post-conviction p e titio n , and Petitioner filed a timely notice of appeal. Petitioner, however, failed to lo d g e a brief with the Arkansas Supreme Court (#7-10). The Arkansas Supreme Court e v e n tu a lly dismissed Petitioner's appeal for failure to file a brief. White v. State, No. CR 0 8 -2 0 4 , 2008 WL 4483010 (Ark. Oct. 2, 2008). Without a brief, Petitioner never a ffo rd e d the Arkansas Supreme Court a fair opportunity to rule on his ineffective a s s is ta n c e of counsel claims. Consequently, Petitioner procedurally defaulted the claims h e brings in the pending habeas petition. P ro c e d u ra l default generally precludes federal habeas review of the defaulted c la im . Woodford v. Ngo, 548 U.S. 81, 92-93, 126 S.Ct. 2378, 2387 (2006). Review of P e titio n e r's claims is precluded unless he can establish "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, 501 U .S . at 750. 4 A. C a u s e and Prejudice C a u s e 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 entitled, however, to e ffe c tiv e assistance of counsel in state post-conviction proceedings. See Coleman, 501 U .S . at 752. Accordingly, any post-conviction advice Petitioner received from his a tto rn e y cannot constitute cause for a procedural default. See Armstrong, 418 F.3d at 927 (c itin g Nolan v. Armantrout, 973 F.2d 615, 617 (8th Cir. 1992)). 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)). Petitioner procedurally defaulted his claims during th e post-conviction proceedings, where he is not entitled to effective assistance of c o u n s e l. Accordingly, ineffective assistance of counsel cannot be cause for Petitioner's p ro c e d u ra l default. In this case, Petitioner has not replied to Respondent's procedural default a rg u m e n t. He has not provided cause for his failure to file an appellate brief. Because P e titio n e r has not established cause for his default, the Court will not address prejudice. 5 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. Accordingly, P e titio n e r failed to overcome his procedural default. III. T h e Statute of Limitations: T h e Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U .S .C . 2244(d)(1), establishes a one-year limitations period during which a state p riso n e r must commence a habeas corpus proceeding under 28 U.S.C. 2254. The s ta tu te provides that the limitation period begins to run from, "the date on which the ju d g m e n t became final by the conclusion of direct review or the expiration of the time lim it for seeking such review." 28 U.S.C. 2244(d)(1)(A). In this case, the Arkansas Supreme Court affirmed Petitioner's conviction on June 2 1 , 2007. He had ninety days to seek certiorari from the Supreme Court of the United S ta te s. Consequently, his conviction became final on the date his time to seek certiorari e x p ire d , September 19, 2007. Riddle v. Kemna, 523 F.3d 850 (8th Cir. 2008) (en banc) (c o n v ic tio n becomes final ninety days after it is affirmed on direct appeal by a state's c o u rt of last resort). Petitioner did not file this habeas petition until October 1, 2009, two 6 years after his conviction became final.3 Accordingly, Petitioner's claims are barred by th e statute of limitations unless the statute of limitations can be tolled. A. Statutory Tolling T itle 28 U.S.C. 2244(d)(2) provides that "[t]he time during which a properly file d application for State post-conviction or other collateral review with respect to the p e rtin e n t judgment or claim is pending shall not be counted toward any period of lim ita tio n under this section." If the filed application does not comply with the laws and ru le s governing filings, however, it is not a "properly filed application for state postc o n v ic tio n or other collateral review," and 28 U.S.C. 2244(d)(2)'s tolling provision d o e s not apply. Walker v. Norris, 436 F.3d 1026, 1030 (8th Cir. 2006). P e titio n e r properly filed a Rule 37 petition on August 20, 2007.4 This filing tolled th e limitation period under 28 U.S.C. 2244(d)(2). The Pulaski County Circuit Court d e n ie d Petitioner's Rule 37 petition on December 19, 2007. The limitation period re m a in e d tolled until Petitioner filed a timely notice of appeal on January 14, 2008. Evans v. Chavis, 546 U.S. 189, 191-192, 126 S.Ct. 846, 849 (2006). Petitioner, however, n e v e r filed an appellate brief with the Arkansas Supreme Court. Petitioner did not date his petition for writ of habeas corpus (#2). His application fo r leave to proceed in forma pauperis is dated September 29, 2009 (#1). Assuming P e titio n e r placed his petition in the prison mailing system on September 29, 2009, his p e titio n is still untimely. Petitioner filed his Rule 37 petition before the expiration of time in which to seek c e rtio ra ri from the United States Supreme Court. 7 4 3 Only "properly filed" applications toll the limitation period under 28 U.S.C. 2244(d)(2). See Artuz v. Bennett, 531 U.S. 4, 8-9, 121 S.Ct. 361, 364 (2000) (an a p p lic a tio n is "properly filed" when the filing is in compliance with applicable laws and ru le s governing filings). The Arkansas Supreme Court dismissed Petitioner's appeal for fa ilu re to file a brief. In Arkansas, the filing of a brief is mandatory under the rules g o v e rn in g appeals. Failure to file a brief constitutes failure to comply with Article IV of th e Rules of the Supreme Court of Arkansas. While Petitioner's notice of appeal was properly filed on January 14, 2008, the a p p e a l itself was not properly lodged. Petitioner failed to perfect his appeal, making it s u b je c t to dismissal for failure to comply with rules governing filings. See Ark. Sup.Ct. R . 4-5. Accordingly, the latest possible date the limitation period began to run was J a n u a ry 15, 2008. P e titio n e r filed the pending habeas petition on October 1, 2009, well after the oney e a r limitation period had expired. Accordingly, his claims are barred by the statute of lim ita tio n s unless he is entitled to equitable tolling. B. Equitable Tolling T h e statute of limitations set out in 28 U.S.C. 2244(d)(1) is subject to equitable to llin g . Riddle, 523 F.3d at 857. A petitioner seeking equitable tolling bears the burden o f establishing two elements: (1) that he has been pursuing his rights diligently, and (2) th a t some extraordinary circumstance stood in his way. Id. (quoting Pace v. Diguglielmo, 5 4 4 U.S. 408, 418 (2005)). 8 Equitable tolling affords an "exceedingly narrow window of relief." Id. (quoting J ih a d v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001)). The Eighth Circuit has held that pro s e status, lack of legal knowledge or legal resources, and confusion about, or m isc a lc u la tio n s of, the limitations period are inadequate grounds to warrant equitable to llin g . See Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004). Petitioner does not provide any reason to support equitable tolling. Although P e titio n e r failed to file an appellate brief, he did file several document related motions. The Arkansas Supreme Court found the information requested by Petitioner in those m o tio n s to be irrelevant to the appeal of his Rule 37 petition. White v. State, No. CR 082 0 4 , 2008 WL 4483010 (Ark. Oct. 2, 2008). Even if filing the motions showed that P e titio n e r was diligently pursuing his rights, he failed to articulate a circumstance that p re v e n te d him from filing an appellate brief. Accordingly, Petitioner is not entitled to e q u ita b le tolling. IV. C o n c lu s io n : P e titio n e r's claims are both procedurally defaulted and time-barred. Accordingly, J a m e s White's Petition for Writ of Habeas Corpus (#2) is DISMISSED with prejudice. IT IS SO ORDERED this 22nd day of April, 2010. ____________________________________ UNITED STATES MAGISTRATE JUDGE 9

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