Scott v. Hobbs
MEMORANDUM OPINION AND ORDER denying the 2 Petition for Writ of Habeas Corpus, dismissing this case with prejudice; a certificate of appealability is denied. Signed by Magistrate Judge Beth Deere on 11/28/12. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CASE NO.: 5:12CV00252 BD
RAY HOBBS, Director,
Arkansas Department of Correction
MEMORANDUM OPINION AND ORDER
Petitioner Mario Scott, an inmate in the Arkansas Department of Correction
(“ADC”), brings this 28 U.S.C. § 2254 petition for writ of habeas corpus (docket entry
#2), challenging his conviction in the Circuit Court of Jefferson County, Arkansas.
Respondent Ray Hobbs has responded to the petition. (#10) For the following reasons,
Mr. Scott’s petition is DENIED and DISMISSED.
On March 15, 2010, Mr. Scott pleaded guilty to first-degree murder. As a result of
the conviction, Mr. Scott received a 25-year sentence in the ADC. He did not appeal his
conviction or sentence. (#2)
On June 11, 2010, Mr. Scott filed a Rule 37 petition for post-conviction relief with
the trial court. The trial court denied the petition without a hearing on December 1,
2010.1 Mr. Scott appealed the denial of his post-conviction petition, and the Arkansas
Supreme Court affirmed on April 12, 2012. Scott v. State, 2012 Ark. 159.
Mr. Scott filed the current petition on July 12, 2012, alleging that his trial counsel
provided ineffective assistance, and that the trial court lacked jurisdiction. (#2) In
response to the petition, Director Hobbs denies that Mr. Scott is entitled to habeas relief.
Standard of Review
Federal courts provide limited review of claims adjudicated in state court. “When
a claim has been adjudicated on the merits in state court, habeas relief is warranted only if
the state court proceeding resulted in: (1) a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court; or (2) a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” Bucklew v.
Luebbers, 436 F.3d 1010, 1015 (8th Cir. 2006) (quoting 28 U.S.C. § 2254(d)(1) and (2));
see also Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 2462 (2005).
A state court decision is deemed contrary to federal law only where the state court
“arrives at a conclusion opposite to that reached by the [United States Supreme] Court on
a question of law or if the state court decides a case differently than the [United States
Director Hobbs states that the trial court denied Mr. Scott’s post-conviction
petition on November 18, 2010.
Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 412-13, 120 S.Ct. 1495 (2000).
A decision is an unreasonable application of federal law only “if the state court
identifies the correct governing legal principle from the [United States Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
Williams, 529 U.S. at 413. It is not enough that a federal court might have applied federal
law in a manner different from the state court. Rather, the state court’s application must
have been objectively unreasonable. Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006)
Furthermore, in a federal habeas proceeding, a state court’s factual findings are
entitled to a presumption of correctness, absent procedural error. Those findings may be
set aside only if they are not fairly supported by the record. Nicklasson v. Roper, 491
F.3d 830, 841 (8th Cir. 2007) (quoting Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct.
Ineffective Assistance of Counsel
The Sixth Amendment guarantees criminal defendants effective assistance of
counsel at every stage of a criminal trial. “That right is denied when a defense attorney’s
performance falls below an objective standard of reasonableness and thereby prejudices
the defense.” Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 4 (2003) (citing Wiggins
v. Smith, 539 U.S. 510, 521 (2003) and Strickland v. Washington, 466 U.S. 668, 687
In order to prevail on a habeas corpus claim based on ineffective assistance of
counsel, a petitioner must show: (1) that trial counsel’s performance was so deficient that
it fell below an objective standard of the customary skill and diligence displayed by a
reasonably competent attorney; and (2) that there is a reasonable probability that the
outcome of the trial would have been different but for the substandard performance of
trial counsel. See Strickland, 466 U.S. at 687-94. Furthermore, “[j]udicial scrutiny of
counsel’s performance is highly deferential, indulging a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional judgment.”
Bucklew v. Luebbers, 436 F.3d 1010, 1016 (8th Cir. 2006) (citing Strickland, 466 U.S. at
689); see also Middleton v. Roper, 455 F.3d 838, 845 (8th Cir. 2006).
To show prejudice in this case, Mr. Scott would have to demonstrate a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370
(1985). Mr. Scott has failed to show either deficient performance or resulting prejudice.
Mr. Scott alleges his trial counsel failed to investigate the case. Without this
alleged failure, he argues, his counsel would have discovered that three of the States’s
four witnesses had pending felony charges. (#3 at p. 2-3) Lenient disposition of pending
charges in exchange for testimony is quite common in criminal proceedings. The issue
goes to the credibility of the witnesses. Here, Mr. Scott chose not to test the credibility of
the witnesses by pleading guilty.
Mr. Scott alleges trial counsel failed to investigate, prepare, and call known
witnesses. Mr. Scott fails to identify the witnesses, however, or to state what information
they had – or even to speculate as to what difference the witnesses would have made. Mr.
Scott, after all, pleaded guilty, so he did not exercise his right to call witnesses on his
behalf to determine guilt. His conclusory allegations regarding his trial counsel’s
investigation, without more, cannot provide the basis for granting relief.
Mr. Scott states that there was no body, DNA, or physical evidence linking him to
the murder. And the prosecutor essentially acknowledged this during the plea hearing.
The prosecutor stated, however, that Mr. Scott had beaten the victim to death in front of
several witnesses, burned the victim’s body until there was nothing left, then dumped the
ashes into a creek or river. (#10 at p. 8; #13-1 at p. 36-38) It seems apparent from this
statement that if the case had gone to trial, the prosecution would have had to rely on the
testimony of witnesses. Yet, Mr. Scott still entered a guilty plea.
Mr. Scott faults his counsel’s alleged failure to challenge having his sentence run
consecutive to the sentence he was already serving. Mr. Scott admits that he knew the
plea deal included a 25-year sentence that would run consecutive to his then-current
sentence. (#3 at p. 3) The trial court clearly explained the consecutive nature of the
proposed sentence to Mr. Scott before he entered a guilty plea. (#10 at p. 7; #13-1 at p.
32) Mr. Scott stated that he understood and agreed to the sentence. (#10 at p. 7-8; #13-1
at p. 32-36) In his habeas corpus petition, Mr. Scott faults his counsel for failing to
challenge the sentence Mr. Scott agreed to. He also alleges that he challenged the
consecutive sentence in chambers, off the record, but that the trial court coerced him to
accept the terms of the plea on the record. The trial court specifically asked Mr. Scott if
anyone had pressured him to agree to the sentence. He said, “No.” (#10 at p. 7-8; #13-1
at p. 33-35)
Mr. Scott alleges that he lacked confidence in his counsel and feared going to trial.
(#3 at p. 3) All of Mr. Scott’s allegations lack support. He has not identified any material
evidence, witness, trial strategy, or defense that his allegedly unprepared counsel failed to
raise or discover.
The Arkansas Supreme Court reasonably addressed Mr. Scott’s ineffectiveassistance-of-counsel claims, applying the standard set forth in Strickland and Hill.2 Scott
v. State, 2012 Ark. 159. The Court found that Mr. Scott had not established prejudice
resulting from his counsel’s allegedly deficient performance. Id.
The Arkansas Supreme Court’s decision was not contrary to, or an unreasonable
application of, clearly established federal law. Further, the Arkansas Supreme Court’s
decision was not based on an unreasonable determination of the facts in the light of the
Mr. Scott faced a capital murder charge as a habitual offender for beating his
girlfriend to death in front of several witnesses. He ended up accepting a plea deal for a
The Arkansas Supreme Court cited Strickland, but did not cite Hill. Instead, the
Court applied the Hill standard as set forth in Arkansas case law. Id. (citing Cummings v.
State, 2011 Ark. 410 (per curiam).
25-year sentence. Even if his counsel had erred, there is nothing in the record to show
that Mr. Scott would not have pleaded guilty and would have insisted on going to trial but
for counsel’s deficient performance.
Lack of Jurisdiction
Mr. Scott also claims that the trial court lost subject matter jurisdiction when it
allegedly failed to establish the factual and legal basis of his guilty plea. (#3 at p. 9-13)
The Arkansas Supreme Court declined to address this claim. Regardless, Mr. Scott is not
entitled to habeas relief.
The trial court provided the legal basis for the capital murder charge during the
plea hearing. (#10 at p. 6; #13-1 at p. 24-25) In addition, the prosecutor provided the
legal basis of the first-degree murder charge – that Mr. Scott beat the victim with the
purpose of causing her death. The prosecutor also provided the factual basis of the
charge. (#10 at p. 8; #13-1 at p. 36-38)
Even if the trial court and prosecutor had not established a factual basis for Mr.
Scott’s charge, he would not be entitled to habeas relief. A sentencing judge is not
constitutionally required to develop a factual basis for a guilty plea. Wabasha v. Solem,
694 F.2d 155, 157-159 (8th Cir. 1982)(citing Santobello v. New York, 404 U.S. 257,
261-62, 92 S.Ct. 495, 498 (1971); McCarthy v. United States, 394 U.S. 459, 464, 89 S.Ct.
1166, 1169-70 (1969)). An express admission of guilt is not constitutionally required
either. Wabasha, 649 F.2d at 157 (citing North Carolina v. Alford, 400 U.S. 25, 37, 91
S.Ct. 160, 167 (1970). Establishing a factual basis is constitutionally required only where
the guilty plea is accompanied by claims of innocence, which was not the case here.
Certificate of Appealability
When entering a final order adverse to a petitioner, the Court must issue or deny a
certificate of appealability. Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Court. The Court can issue a certificate of appealability only if Mr.
Scott has made a substantial showing that he was denied a constitutional right. 28 U.S.C.
§ 2253(c)(1)-(2). In this case, Mr. Scott has not provided a basis for issuing a certificate
of appealability. Accordingly, a certificate of appealability is denied.
Mr. Scott’s claims lack merit. Because there are no available, non-futile state
judicial remedies available to Mr. Scott, his petition for a federal writ of habeas corpus is
DENIED, and this case is DISMISSED, with prejudice.
DATED this 28th day of November, 2012.
UNITED STATES MAGISTRATE JUDGE
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