Shaw v. Hobbs

Filing 12

MEMORANDUM OPINION AND ORDER dismissing Petitioner Robert Shaw's petition for writ of habeas corpus with prejudice. Signed by Magistrate Judge Beth Deere on 11/9/10. (hph)

Shaw v. Hobbs

Doc. 12

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. SHAW A D C #112073 VS. CASE NO.: 5:10CV00146 BD R ESPON D EN T PETITIONER

R A Y HOBBS, Director, A r k a n s a s Department of Correction

M E M O R A N D U M OPINION AND ORDER P e titio n e r Robert Shaw filed this pro se petition for writ of habeas corpus (docket e n try #2) under 28 U.S.C. § 2254, challenging his guilty plea in the Circuit Court of C ritte n d e n County, Arkansas. Respondent filed a response (#8) to the petition, and P e titio n e r replied. (#11) For the following reasons, the petition is DENIED and D IS M IS S E D , with prejudice. I. B ackground O n June 15, 2009, Petitioner pled guilty in Crittenden County Circuit Court to f irs t-d e g re e child endangerment. (#8, Ex. A, B, and C) As a result of the conviction, the c o u rt sentenced Petitioner to six years' imprisonment in the Arkansas Department of C o rre c tio n . P e titio n e r had previous felony convictions in 1997 for kidnaping and aggravated ro b b e ry with a firearm. (#8, Ex. D) He negotiated a plea of guilty and received a 300m o n th sentence, with 180 months suspended, for the 1997 convictions. (#8, Ex. D)

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Petitioner was either on probation or parole for the 1997 convictions at the time he e n d a n g e re d the welfare of his minor daughter. As part of the endangerment plea a g re e m e n t, the Crittenden County Circuit Court dismissed Petitioner's revocation p ro c e e d in g . (#8, Ex. B, p. 9; and Ex. H) B e c a u s e Petitioner entered a guilty plea, he could not directly appeal his e n d a n g e rm e n t conviction. See Rule 1(a) of the Arkansas Rules of Appellate ProcedureC rim in a l. On August 13, 2009, however, he filed a timely Rule 37 petition for postc o n v ic tio n relief in the Crittenden County Circuit Court. (#8, Ex. E) The trial court d e n ie d the petition on August 27, 2009. (#8, Ex. F) Petitioner appealed, and the A rk a n sa s Supreme Court affirmed the denial on March 4, 2010. Shaw v. State, 2010 Ark. 1 1 2 , 2010 WL 745874 (2010). O n May 12, 2010, Petitioner filed this § 2254 petition for writ of habeas corpus c la im in g that: (1) his counsel induced him into entering an involuntary, unintelligent g u ilty plea; (2) his counsel coerced him into entering a guilty plea; (3) his counsel p ro v id e d constitutionally inadequate assistance; and (4) he is actually innocent of the c rim e to which he pled guilty. (#2, p. 5-10) In response to the petition (#8), Respondent argues that Petitioner's claims are p ro c e d u ra lly defaulted and lack merit. Petitioner replied (#11) to the response by re ite ra tin g the grounds for relief raised in his petition.

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II.

D is c u s s io n A. 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 error. 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 th e same factual and legal bases relied on in state court." Interiano v. Dormire, 471 F.3d 8 5 4 , 856 (8th Cir. 2006) (citations omitted). C la im s raised in a federal habeas petition that were not fairly presented in state c o u rt proceedings and for which there is no remaining state court remedy are defaulted, a n d a habeas 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). P e titio n e r's habeas claims here are different from the claims he raised in his state R u le 37 petition. (#2, p. 5-10) In his state petition, he did contend, among other claims,

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that his counsel had coerced him into entering a guilty plea and had provided c o n s titu tio n a lly inadequate assistance. (#8, Ex. E, p. 6-9) 1 P e titio n e r's involuntary plea and counsel coercion claims are, arguably, related. The factual basis offered in support of these claims ­ both in support of the Rule 37 p e titio n and the current habeas petition ­ is limited. See docket entry #2, p. 5-10, and # 8 , Ex. E, p. 6-9. The factual support is so sparse, in fact, that the Arkansas Supreme C o u rt found that Petitioner had failed to provide sufficient facts to state a claim for relief in his Rule 37 petition. Shaw v. State, 2010 Ark. 112, 2010 WL 745874 (2010). 1. T h e Rule 37 Petition

In his Rule 37 petition, Petitioner claimed "actual or constructive denial of c o u n s e l." (#8, Ex. E, p. 8) This is the only ground for relief Petitioner raised in the Rule 3 7 petition that could relate to the claims raised in the federal habeas petition. Compare d o c k e t entry #8, Ex. E, p. 6-9, with #2, p. 5-10. In support of this claim, Petitioner a lle g e d his trial counsel failed "to argue during plea negotiation the mitigating facts and f a c to rs ." (#8, Ex. E, p. 8) Petitioner did not state what these mitigating facts or factors w e re or how presenting them would have affected plea negotiations.

Petitioner raised three grounds for relief in his Rule 37 petition: (1) actual or c o n s tru c tiv e denial of counsel, (2) prosecutorial misconduct, and (3) denial of Due P ro c e s s . (#8, Ex. E, p. 6-9) In the first ground for relief, Petitioner claimed his counsel c o e rc e d him into entering a guilty plea. The prosecutorial misconduct and Due Process c la im s were not raised in the present proceeding and are not relevant to this discussion. 4

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Petitioner accused his trial counsel of failing to seek a bifurcated trial and failing to file a motion to suppress or motion in limine. (#8, Ex. E, p. 8) Petitioner entered a g u ilty plea prior to trial. He did not explain why he needed a bifurcated trial or how f a ilu re to seek one prejudiced him. Petitioner also failed to state the legal basis or factual s u p p o rt for a motion to suppress or motion in limine. If there was no meritorious basis for f ilin g these motions, then failure to file them would have had no effect on Petitioner's r e p r e s e n ta tio n . Petitioner alleged that his counsel had refused to allow him to "put up a defense w h ile himself coercing the plea" (#8, Ex. E, p. 8) and also alleged that his lawyer failed to discover facts, witnesses, or physical evidence to support an affirmative defense. (#8, E x . E, p. 6-7) He failed to describe, however, any actions taken by his lawyer that were c o e rc iv e . Petitioner also failed to describe the facts, witnesses, or physical evidence that h is counsel should have discovered, or to identify any affirmative defense that could have b e e n raised. " T h e onus rests on [Petitioner] to present the substance of his federal claims `in e a c h appropriate state court.'" Turnage v. Fabian, 606 F.3d 933, 936 (8th Cir. 2010) (c ita tio n s omitted). Instead of offering facts to support his Rule 37 claims, Petitioner m a d e conclusory allegations of ineffective assistance of counsel. Even if Petitioner had p ro v id e d the broad contours of a federal claim, reciting only the facts necessary to state a c la im for relief is not sufficient to fairly present the substance of the claim, id. (citations

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omitted); neither is making a general appeal to a broad constitutional guarantee. Id. (c ita tio n s omitted). Petitioner's failure to set out any facts to support his claims deprived the state c o u rt of the opportunity to address the merits of the federal claims. Accordingly, P e titio n e r failed to properly exhaust his state court remedies. Failure to properly exhaust a ground for relief results in procedural default, which generally precludes federal habeas re v ie w of the defaulted claim. Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 2387 (2 0 0 6 ). Consequently, Petitioner's claims are procedurally defaulted unless he can e s ta b lis h "cause for the default and actual prejudice as a result of the alleged violation of f e d e ra l law, or demonstrate that failure to consider the claims will result in a fundamental m isc a rria g e of justice." Coleman, 501 U.S. at 750. 2. C a u s e and Prejudice

P e titio n e r notes that he filed a timely Rule 37 petition with the trial court and duly a p p e a le d the denial of his petition. (#11) He also notes that he timely requested an e x te n s io n of time to file his appellate brief. (#11) These arguments address the tim e lin e s s of the Rule 37 petition, but not its substance. None of Petitioner's arguments c o n s titu te cause. 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 where the Sixth Amendment

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requires that a criminal defendant have a lawyer, ineffective assistance of counsel can be c a u s e for a procedural default. Murray, 477 U.S. at 488. A defendant is not entitled to a s s is ta n c e of counsel, however, in state post-conviction, i.e., Rule 37, proceedings. See C o le m a n , 501 U.S. at 752. In this case, Petitioner defaulted his claims during the post-conviction proceedings b y failing to offer supporting facts. As a result, ineffective assistance of counsel cannot c o n s titu te cause for Petitioner's procedural default. See Armstrong, 418 F.3d at 927 (c itin g Nolan v. Armantrout, 973 F.2d 615, 617 (8th Cir. 1992)). 3. 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, based on new evidence, that 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)). Petitioner entered a guilty plea to child endangerment. Although he claims he is a c tu a lly innocent, he has not come forward with any evidence to support this assertion. Accordingly, Petitioner has failed to overcome his procedural default. B. F a c tu a l Development of Claims

Federal habeas review is generally precluded when a petitioner fails to develop the f a c tu a l basis of the claims in the state court proceedings. Ervin v. Delo, 194 F.3d 908,

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915 (8th Cir. 1999). Under 28 U.S.C. § 2254(e)(2), "a habeas petitioner must develop the f a c tu a l basis of his claim in the state court proceedings rather than in a federal evidentiary h e a rin g unless he shows that his claim relies upon a new, retroactive law, or due diligence c o u ld not have previously discovered the facts." Mark v. Ault, 498 F.3d 775, 788 (8th C ir. 2007) (quoting Cox v. Burger, 398 F.3d 1025, 1030 (8th Cir. 2005)). In addition, the f a c ts underlying the claim must be sufficient to establish, by clear and convincing e v id e n c e , that but for the constitutional error, no reasonable fact-finder would have found th e petitioner guilty of the underlying offense. See 28 U.S.C. § 2254(e)(2)(B). Petitioner has not identified a new, retroactive law applicable to this case; nor has h e presented evidence discovered after he filed his Rule 37 petition. He has not presented e v id e n c e or argument that would allow this Court to hold an evidentiary hearing. He c a n n o t develop the factual basis now for claims that he failed to develop in the state court p ro c e e d in g s . III. C e r tific a te of Appealability W h e n entering a final order adverse to Petitioner, the Court must issue or deny a c e rtif ic a te of appealability. See Rule 11 of the Rules Governing Section 2254 Cases in th e United States District Court. The Court can issue a certificate of appealability only if a petitioner has made a substantial showing that he has been denied a constitutional right. 28 U.S.C. § 2253(c)(1)-(2). In this case, Petitioner has not provided a basis that would

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permit this Court to issue a certificate of appealability. Accordingly, a certificate of a p p e a la b ility is denied. IV . C o n c lu s io n Petitioner did not properly exhaust any of the claims for relief presented in the p e n d in g habeas corpus petition. He has not provided a basis for this Court to hold an e v id e n tia ry hearing to allow the him to develop facts to support his claims. Accordingly, Petitioner Robert Shaw's petition for writ of habeas corpus is D IS M IS S E D with prejudice, this 9th day of November, 2010.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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