Johnson v. Hobbs

Filing 18

ORDER denying 11 Petitioner's Motion to Stay and Motion to Appoint Counsel. Signed by Magistrate Judge J. Thomas Ray on 03/05/2014. (kcs)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

ROBERT EUGENE JOHNSON
ADC#78181

VS.

PETITIONER

5:12CV00370 KGB/JTR

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT

ORDER
Petitioner has filed a Motion (doc. #11) requesting the appointment of
counsel. He relies on the Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309
(2012). In Martinez, the United States Supreme Court recognized a “limited” and
“narrow” equitable exception to the procedural default doctrine in jurisdictions
where an ineffective assistance of trial counsel claim must be raised for the first
time in an “initial-review collateral proceeding.” “[A] procedural default will not
bar a federal habeas court from hearing a substantial claim of ineffective assistance
at trial if, in the initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.”1 Id. at 1320.

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In Dansby v. Norris, 682 F.3d 711 (8th Cir. 2012), the Eighth Circuit considered the Martinez exception,
in the context of a federal habeas claim arising in Arkansas, and concluded that, because an ineffective assistance of
counsel claim may be raised in a motion for new trial and on direct appeal in Arkansas, Martinez was inapplicable.
However, in Trevino v. Thaler, 133 S. Ct. 1911 (2013), the United States Supreme Court held that Martinez was

Petitioner argues that, pursuant to Martinez, he is entitled to the appointment
of counsel and a stay so that appointed counsel can investigate his procedurallydefaulted ineffective assistance claims. He also requests counsel to investigate his
claim of actual innocence.
While Martinez establishes an equitable exception to procedural default, it
does not provide an independent basis to appoint counsel in a habeas case. It is
well settled that a habeas petitioner in a non-capital case does not have a
constitutional or statutory right to counsel. See Morris v. Dormire, 217 F.3d 556,
558 (8th Cir. 2000).
Instead, the Court may, in its discretion, appoint counsel if: (1) the habeas
action is factually or legally complex; or (2) the petitioner is unable to investigate
or articulate his claims without court-appointed counsel. Id. After careful
consideration, the Court concludes that the factual and legal issues presented in this
non-capital habeas case are not complex, and that Petitioner has demonstrated his
ability to investigate and articulate his claims.

applicable in Texas, where the procedural rules only “theoretically” allowed for ineffective-assistance claims to be
raised on direct appeal: “where, as here, a state procedural framework, by reason of its design and operation, makes
it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective
assistance of trial counsel on direct appeal, our holding in Martinez applies.” Afterwards, the United States Supreme
Court vacated the Dansby decision and remanded the case to the Eighth Circuit “for further consideration in light of
Trevino v. Thaler[.]” Dansby v. Hobbs, 133 S. Ct. 2767 (2013).
The Eighth Circuit’s reconsideration of Dansby is currently pending. However, in a recent capital habeas
case, Sasser v. Hobbs, 735 F.3d 833, 852-853 (8th Cir. 2013), the Court held that the Arkansas procedural system did
not “as a systematic matter” afford the petitioner “meaningful review of a claim of ineffective assistance of trial
counsel” on direct appeal. Accordingly, it held that Martinez and Trevino were applicable.

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IT IS THEREFORE ORDERED THAT Petitioner’s Motion for Stay and
Appointment of Counsel (doc. #11) is DENIED.
Dated this 5th day of March, 2015.

__________________________________
UNITED STATES MAGISTRATE JUDGE

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