Tarkington v. Hobbs

Filing 10

ORDER: Document # 2 Petition for Writ of Habeas Corpus is dismissed; the requested relief is denied; and all pending motions are denied as moot. Signed by Magistrate Judge Joe J. Volpe on 6/14/2011. (srw)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
NICHOLAS TARKINGTON,
ADC #145954
Petitioner,
vs.
RAY HOBBS, Director, Arkansas
Department of Correction
Respondent.

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No. 5:11-cv-00050-JJV

DISPOSITION
Petitioner, Nicholas Tarkington, an inmate at the East Arkansas Regional Unit of the
Arkansas Department of Correction (ADC), brings this 28 U.S.C. § 2254 Petition for Writ of Habeas
Corpus (Doc. No. 2).
I.

BACKGROUND
Mr. Tarkington was convicted by a jury in Lonoke County, Arkansas, of two counts of rape

for forcing his six-year-old daughter to have sexual intercourse with him, and forcing his four-yearold daughter to perform oral sex. Tarkington v. State, No. CACR 10-65, 2010 WL 2605668 (Ark.
App. 2010). He was sentenced to forty years imprisonment on each count, to be served concurrently.
(Doc. No. 6).
Mr. Tarkington filed a direct appeal to the Arkansas Court of Appeals arguing that he “was
denied his right to confront the accusing witness face-to-face in violation of the Sixth Amendment
of the United States Constitution and Article 2 § 10 of the Arkansas Constitution, the trial court
made no specific findings that the denial was necessary, and the testimony of the witnesses was
inherently unreliable.” (Doc. No. 6, Ex. A). The State of Arkansas filed a response contending that
he was not entitled to relief because he “failed to present [the Arkansas Court of Appeals] with a

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record sufficient to address his claim; or, in the alternative, [he] was not deprived of his state or
federal constitutional right to confront witnesses against him.” (Id.).
On June 30, 2010, the Arkansas Court of Appeals affirmed Tarkington’s conviction, finding
that he failed to “bring up a record of his alleged Confrontation Clause violation.” Tarkington v.
State, No. CACR 10-65, 2010 WL 2605668 (Ark. App. 2010). He failed to file a timely petition for
post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37. (Doc. No. 2).
Tarkington filed the instant Petition for Habeas Corpus on March 4, 2011. (Doc. No. 2). He
set forth allegations for relief identical to his direct appeal to the Arkansas Court of Appeals, except
this time he separately enumerates them.1 First, Mr. Tarkington contends that he was “denied his
right to confront the accusing witness face-to-face in violation of the [Sixth] Amendment of the
United States Constitution.” (Id.). Second, he states that “the trial court made no findings that
denying [his] right of confrontation was to further an important public policy.” (Id). Lastly, he
argues there was “[n]o assurances that the testimony was otherwise reliable.” (Id.). The Court finds
that all of these arguments ultimately relate to his claim that his Confrontation Clause rights were
violated.
The Respondent argued that Mr. Tarkington’s Petition should be denied because his
arguments are procedurally barred or meritless. (Doc. No. 6). Mr. Tarkington filed a Motion to
Traverse (Doc. No. 9), contending that his Petition is not procedurally barred because the Arkansas
Court of Appeals opinion did not contain a plain statement of procedural default. (Id.). Because the

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In Mr. Tarkington’s appeal to the Arkansas Supreme Court, he listed one point on appeal
– “Appellant was denied his right to confront the accusing witness face-to-face in violation of the
Sixth Amendment of the United States Constitution and Article 2 § 10 of the Arkansas Constitution,
the trial court made no specific findings that the denial was necessary, and the testimony of the
witnesses was inherently unreliable.” (Doc. No. 6, Ex. A). For this reason, it appears the Arkansas
Court of Appeals considered Mr. Tarkington to raise only one point on appeal –“For the sole point
on appeal, Tarkington argues that the circuit court erred in overruling his objection that the
prosecuting attorney purposely stood between Tarkington and K.T. when she testified.” Tarkington
v. State, No. CACR 10-65, 2010 WL 2605668 (Ark. App. 2010).
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opinion did not “rest upon [a] state procedural default . . . the federal courts will presume there is no
independent and adequate state ground, in the absence of a plain statement.” (Id.).
II.

DISCUSSION
A federal court is precluded from considering a habeas corpus claim that a “state court has

disposed of on independent and adequate non-federal grounds.” Clemons v. Luebbers, 381 F.3d 744,
750 (8th Cir. 2004) (citing Reagan v. Norris, 279 F.3d 651, 656 (8th Cir. 2002). “This rule applies
whether the state law ground is substantive or procedural.” Coleman v. Thompson, 501 U.S. 722,
729 (1991). Where the state court dismisses a habeas petitioner's claims on independent and
adequate state law grounds or the petitioner has failed to fairly present his claims to the state court,
the claims are procedurally defaulted, and a federal district court cannot consider them unless the
petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged
constitutional violation or actual innocence. Coleman, 501 U.S. at 744, 750-51; Prewitt v. Goeke,
978 F.2d 1073, 1077 (8th Cir. 1992); Reagan, 279 F.3d at 656. “In other words, a state prisoner who
fails to satisfy state procedural requirements forfeits his right to present his federal claim through a
federal habeas corpus petition, unless he can meet strict cause and prejudice or actual innocence
standards.” Clemons, 381 F.3d at 750.
Mr. Tarkington argued on appeal that he was denied his constitutional right to confront the
accusing witness face-to-face and the trial court made no specific findings that the denial was
necessary and the testimony of the witnesses was unreliable. (Doc. No. 6). The Arkansas Court of
Appeals rejected Mr. Tarkington’s constitutional claim by stating:
In the present case, Tarkington failed to bring up a record of his alleged
Confrontation Clause violation. The record presented to this court fails to indicate the
locations of the child witness, the prosecutor, and Tarkington. One can assume from
the sidebar discussion that K.T. testified from the witness stand, Tarkington sat at
counsel table, and the prosecutor stood somewhere in between. We can only infer
from the sidebar colloquy that, although Tarkington may not have made eye contact
with K.T., he nevertheless was situated in the courtroom where he could have viewed

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her and could have heard her testify. Smith, supra.2 However, the record fails to
indicate to what degree Tarkington's view was obstructed. Moreover, nothing in this
record or in the sidebar exchange suggests that Tarkington made a motion for the
court to position him in such a way to better view the child witness during her
testimony. Small, supra.3 The supreme court repeatedly has stated that it is the
appellant's burden to bring up a record sufficient to demonstrate that the trial court
was in error, and where the appellant fails to meet its burden, we have no choice but
to affirm the trial court. Davidson v. State, 363 Ark. 86, 210 S.W.3d 887 (2005).
Thus, in light of Tarkington's failure to bring up a sufficient record, we affirm.
The dissent appears to infer from Craig, supra,4 that the trial court was
required to make case-specific findings that a “denial of confrontation was necessary
to protect K.T. from trauma,” and Tarkington argues in his brief that the trial court
failed to make specific findings required by Craig, supra. However, the dissent's
inference presupposes that a Confrontation Clause violation actually occurred. In
response, we simply note the holding of our supreme court in Smith, supra. Because
we affirm the circuit court's ruling that Tarkington failed to establish, as an initial
matter, the presence of a Confrontation Clause deprivation, we do not address the
merits of Tarkington's argument on appeal.
Tarkington v. State, No. CACR 10-65, 2010 WL 2605668 (Ark. App. 2010).
This Court finds the Arkansas Court of Appeals’ opinion dismissing Mr. Tarkington’s appeal
was resolved on an adequate and independent state ground, namely Mr. Tarkington’s failure to bring
a sufficient record before the Arkansas Court of Appeals. The Court must now determine whether
Mr. Tarkington has shown cause and prejudice or a fundamental miscarriage of justice.
A.

Cause and Prejudice

Because Mr. Tarkington’s claims were barred by a state procedural rule, he must show cause
and prejudice or demonstrate a fundamental miscarriage of justice (actual innocence) in order to
proceed in federal court on this habeas petition. Coleman, 501 U.S. at 750; Murray v. Carrier, 477
U.S. 478, 488 (1986). The existence of cause "must ordinarily turn on whether the prisoner can
show some objective factor external to the defense impeded counsel's efforts to comply with the

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Smith v. State, 340 Ark. 116 (2000).

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Small v. State, 371 Ark. 244 (2007).

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Maryland v. Craig, 497 U.S. 836 (1990).
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State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). At a minimum, a petitioner
must show that something "external to [him], something that cannot be fairly attributed to him,"
caused the procedural default. Ivy v. Caspari, 173 F.3d 1136, 1140 (8th Cir.1999) (quoting Coleman
v. Thompson, 501 U.S. at 753).
Mr. Tarkington has failed to prove any cause or prejudice. Instead, he simply reargues the
same issue he presented to the Arkansas Court of Appeals. In his Motion to Traverse, he attempts
to argue that his Petition is not procedurally barred because the Arkansas Court of Appeals’ record
“contains no plain statement of procedural default as required by Harris v. Reid, 489 U.S. 255
(1989).” (Doc. No. 9). In Harris, the United States Supreme Court held that “the mere fact that a
federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court
from reaching the federal claim: ‘[T]he state court must actually have relied on the procedural bar
as an independent basis for its disposition of the case.’” Harris, 489 U.S. at 261-62. This Court finds
the Arkansas Court of Appeals unequivocally found that Mr. Tarkington’s claims were procedurally
defaulted and stated, “In the present case, Tarkington failed to bring up a record of his alleged
Confrontation Clause violation. . . . Thus, in light of Tarkington's failure to bring up a sufficient
record, we affirm.” Tarkington v. State, No. CACR 10-65, 2010 WL 2605668 (Ark. App. 2010).
Although Mr. Tarkington may continue to disagree with the Arkansas Court of Appeals’ ruling, he
has failed to show cause and prejudice.
B.

Actual Innocence

A federal habeas petitioner who has procedurally defaulted may be able to proceed if he
establishes (1) new and reliable evidence that was not presented to the state courts, and (2) that in
light of the new evidence it is more likely than not that no reasonable juror would have convicted
him. See Weeks v. Bowersox, 119 F.3d 1342, 1351 (8th Cir.1997) (emphasis added). The “actual
innocence gateway is very limited. Id. Few petitioners are within the narrow class of cases . . .
implicating a fundamental miscarriage of justice.” Id.
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Mr. Tarkington does not argue that he is actually innocent of the charges and therefore does
not invoke the miscarriage of justice exception. However, one could construe his argument that the
witnesses’ testimony was unreliable as an argument of actual innocence. Nevertheless, “the
miscarriage of justice exception requires prisoners to present ‘evidence of innocence so strong that
a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the
trial was free of non-harmless constitutional error.’” Turnage v. Fabian, 606 F.3d 933, 941 (8th Cir.
2010) (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995). The evidence introduced at trial, including
the witnesses’ testimony, provide overwhelmingly strong evidence that Mr. Tarkington is not
innocent.
III.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

Mr. Tarkington’s § 2254 (Doc. No. 1) is DISMISSED, and the requested relief is

DENIED; and
2.

All pending motions are denied as moot.

IT IS SO ORDERED this 14th day of June, 2011.

________________________________
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE

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