Rodriguez v. Hobbs

Filing 8

ORDER granting Petitioner until 5/19/11 to submit a pleading explaining the apparent procedural default regarding this habeas action. Signed by Magistrate Judge H. David Young on 4/19/11. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
FERNANDO RODRIGUEZ
VS.

PETITIONER

CASE NO. 5:11CV00032 JMM/HDY

RAY HOBBS, Director of the
Arkansas Department of Correction

RESPONDENT
ORDER

The Court has received an application for writ of habeas corpus pursuant to 28 U.S.C. §2254
from Fernando Rodriguez, an inmate in the custody of the Arkansas Department of Correction
(ADC). In 2006, a Benton County jury found Rodriguez guilty of first-degree murder. Mr.
Rodriguez was sentenced to life imprisonment in the ADC. A direct appeal1 to the Arkansas
Supreme Court was unsuccessful. Rodriguez v. State, 372 Ark. 335 (2008). Mr. Rodriguez
subsequently sought postconviction relief pursuant to Ark. Rule Crim. Pro. 37, alleging ineffective
assistance of counsel due to the trial attorney’s failure to object to the testimony of witnesses who
allegedly falsely testified because they were threatened with deportation. In support of this claim,
he submitted the affidavits of three witnesses stating that they were threatened with deportation
unless they testified favorably for the prosecution. The trial court denied relief without a hearing,
and the Arkansas Supreme Court affirmed this decision on appeal. Rodriguez v. State, 2010 WL
569750 (Ark., Feb. 18, 2010).
In this petition, Mr. Rodriguez raises three claims for relief:

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On appeal, Rodriguez claimed the trial court erred in admitting the out-of-court statement of
a witness as an excited utterance. He also claimed that the admission of the statement resulted in
a violation of his rights under the Confrontation Clause of the Sixth Amendment of the United
States Constitution. The Arkansas Supreme Court found that the trial court erred in admitting
the statement as an excited utterance. However, the Arkansas Supreme Court further found the
error was harmless as the statement was “merely cumulative.” 372 Ark. at 339. Mr. Rodriguez
also claimed on appeal that the trial court should have granted his motion to continue the trial so
that he could obtain a jury of his peers.

1.

He received ineffective assistance of counsel (a) when his trial attorney failed
to investigate and object to the testimony of witnesses who were threatened
with deportation, and (b) when his attorney failed to challenge the sufficiency
of the evidence;

2.

The circuit court violated the petitioner’s right to due process when it refused
to allow him to amend his Rule 37 petition and refused to hold a hearing on
the Rule 37 petition; and

3.

His conviction was based upon the knowingly false testimony procured by
duress and coercion.

The respondent contends that grounds 1(b), 2 and 3 are not properly before this Court due
to the petitioner's failure to adequately raise these grounds in state court, as required by Wainwright
v. Sykes, 433 U.S. 72 (1977), and its progeny.
In Wainwright v. Sykes, supra, the United States Supreme Court held that a federal court
should not reach the merits of a litigant's habeas corpus allegation if he has procedurally defaulted
in raising that claim in state court: that is, if he was aware of the ground, but failed to pursue it to
a final determination. The exception created by the Supreme Court permits such an allegation to
be addressed if the litigant can establish "cause" for his failure to assert the known ground and
"prejudice" resulting from that failure. See, also, Clark v. Wood, 823 F.2d l24l, l250-5l (8th Cir.
l987); Messimer v. Lockhart, 822 F.2d 43, 45 (8th Cir. l987). The Wainwright v. Sykes cause and
prejudice test was clarified by two subsequent Supreme Court decisions, Smith v. Murray, 477 U.S.
527 (l986), and Murray v. Carrier, 477 U.S. 478 (l986).
With respect to cause, these cases explain that the Court has "declined in the past to essay
a comprehensive catalog of the circumstances that [will] justify a finding of cause." Smith v.
Murray, 477 U.S. 533-34. However, one can discern from these cases several circumstances in
which cause might be found: first, where some objective factor external to the defense impeded
counsel's efforts to comply with the State's procedural rules, see Murray v. Carrier, 477 U.S. at 488;
second, where a constitutional claim is so novel that its legal basis is not reasonably available to
counsel, see Reed v. Ross, 468 U.S. l (l984); or third, if the litigant failed to receive the effective
assistance of counsel. See Murray v. Carrier, 477 U.S. at 488. In addition, there is one
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extraordinary circumstance where a federal habeas court may grant relief without a showing of
cause: where a constitutional violation has probably resulted in the conviction of one who is
actually innocent. Id. at 496.
The Court must acknowledge that we are giving serious consideration to dismissing grounds
1(b), 2, and 3because of the apparent procedural default. Before making a final determination,
though, we will give Mr. Rodriguez an opportunity to explain why these grounds should not be
dismissed.
Petitioner is granted until, and including, May 19, 2011, to submit a pleading in which he
explains why these grounds are not procedurally barred. Final consideration of this petition will be
postponed pending the receipt of that pleading.
IT IS SO ORDERED this 19

day of April, 2011.

UNITED STATES MAGISTRATE JUDGE

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