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)

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.

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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

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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.

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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.

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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
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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

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