McClard v. Hobbs

Filing 33

ORDER approving and adopting 28 Proposed Findings and Recommended Disposition in its entirety as this Court's findings in all respects; dismissing with prejudice Mr. McClard's 2 petition for writ of habeas corpus; and denying a certificate of appeability. Signed by Judge Kristine G. Baker on 11/24/2015. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JEREMY WAYNE MCCLARD
ADC #652338
v.

PLAINTIFF

Case No. 5:13-cv-315 KGB

WENDY KELLEY, Director,
Arkansas Department of Correction

DEFENDANT
ORDER

The Court has received the Proposed Findings and Recommended Disposition
(“Recommendation”) submitted by United States Magistrate Judge J. Thomas Ray (Dkt. No. 28).
Defendant Wendy Kelley, as the Director of the Arkansas Department of Correction, and
plaintiff Jeremy McClard each filed objections to the Recommendation (Dkt. Nos. 30, 31).
Director Kelley has responded to Mr. McClard’s objections (Dkt. No. 32). After carefully
considering the Recommendation, objections, and responses, and conducting a de novo review of
the record, the Court hereby approves and adopts the Recommendation in its entirety as this
Court’s findings in all respects. The Court dismisses with prejudice Mr. McClard’s petition for
writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. No. 2-1). The Court denies a certificate of
appealability pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts.
The Court writes separately to address certain objections. Director Kelly objects to the
Recommendation insofar as it determines that Mr. McClard’s first two claims of ineffective
assistance of counsel were procedurally defaulted at the initial post-conviction review
proceeding and should be analyzed under the rubric set forth in Martinez v. Ryan, 132 S. Ct.
1309 (2012). Mr. McClard first raised his ineffective assistance of counsel claims on November

26, 2012, when he filed a pro se petition for post-conviction relief under Arkansas Rule of
Criminal Procedure 37. On February 5, 2013, the trial court dismissed the Rule 37 petition
because Mr. McClard had not served the prosecuting attorney. Mr. McClard did not appeal the
trial court’s decision. Director Kelley contends that the Arkansas trial court erroneously denied
Mr. McClard’s Rule 37 petition but that, because Mr. McClard failed to appeal such denial, his
ineffective assistance of counsel claims are nonetheless defaulted. Director Kelly argues that,
because Mr. McClard’s failure to appeal the Arkansas trial court’s erroneous dismissal of these
claims resulted in the default of these claims, the Martinez analysis cannot excuse the default and
this Court cannot review the claims, citing Martinez and Arnold v. Dormire, 675 F.3d 1082, 1087
(8th Cir. 2012).
“Ordinarily a federal court reviewing a state conviction in a [§2254] proceeding may
consider only those claims which the petitioner has presented to the state court in accordance
with state procedural rules.” Arnold, 675 F.3d at 1086. “The claims must be presented in a
timely and procedurally correct manner so as to allow review on the merits, and a failure to do so
results in a procedural default.” Kennedy v. Delo, 959 F.2d 112, 115 (8th Cir. 1992). In
Martinez, however, the Supreme Court held that a habeas petitioner may rely on a lack of
counsel or ineffective assistance of counsel at the initial step of post-conviction review to argue
that “cause” excuses a procedural default of an ineffective assistance of counsel claim. The
Court in Martinez stated:
Where, under state law, claims of ineffective assistance of trial counsel must be
raised 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.
132 S. Ct. at 1320.

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In Arnold, the Eighth Circuit Court of Appeals held that “Martinez offers no support,
however, for the contention that the failure to preserve claims on appeal from a postconviction
proceeding can constitute cause.” 675 F.3d at 1082. The Arnold Court emphasized that the
petitioner in its case “d[id] not claim that his counsel in his initial-review collateral proceeding
was ineffective. Arnold’s multiple ineffective assistance claims were litigated in his initialreview collateral proceeding, but not preserved on appeal. Thus, unlike in Martinez, Arnold has
already had his day in court; deprivation of a second day does not constitute cause.” Id. at 1087.
Magistrate Judge Ray concluded that the Martinez exception must be considered in
regard to Mr. McClard’s first two ineffective assistance of counsel claims after finding that
“McClard first defaulted these two claims when he failed to properly serve his pro se Rule 37
petition, i.e., at the initial level of collateral review” (Dkt. No. 28, at 11 n.9). Director Kelley
argues that this conclusion relies on an incorrect interpretation of Arkansas law. Citing the
language of Arkansas Rule of Criminal Procedure 37, Director Kelley argues that, “the failure to
serve a Rule 37 petition on the prosecuting attorney is not grounds for default under the state
rule,” meaning that “a Martinez analysis is unnecessary because the default occurred when
petitioner failed to appeal the denial of his Rule 37 petition” (Dkt. No. 30, at 2-3). Director
Kelley asks this Court to adopt the Recommendation as modified in conformity with her
understanding of Rule 37. In effect, she asks that the Court determine when the procedural
default occurred—upon the trial court’s erroneous dismissal or upon Mr. McClard’s failure to
appeal the trial court’s dismissal. Director Kelley has not cited a case that addresses this specific
issue, and the Court is not aware of such a case.
The Court declines to rule on when Mr. McClard procedurally defaulted because his
habeas petition fails regardless.

To the extent that the Arkansas trial court’s potentially

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erroneous dismissal of Mr. McClard’s Rule 37 petition constitutes the procedural default of his
claims at the initial post-conviction review, this Court may excuse Mr. McClard’s procedural
default if he meets the requirements set forth in Martinez. See Dansby v. Hobbs, 766 F.3d 809,
834 (8th Cir. 2014). In the Recommendation, Judge Ray analyzed Mr. McClard’s ineffective
assistance of counsel claims under the Martinez rubric, determining that Mr. McClard’s claims
were not “substantial” enough to excuse the procedural default. This Court approves and adopts
Judge Ray’s analysis in its entirety. To the extent that Mr. McClard’s failure to appeal the
Arkansas trial court’s dismissal constitutes the procedural default, Mr. McClard’s claims are
procedurally barred under Arkansas law and unreviewable by this Court under Martinez and
Arnold. See Proctor v. State, 60 S.W.3d 486, 488 n.1 (Ark. Ct. App. 2001) (“Arguments not
raised on appeal are deemed waived.”); see also Arnold, 675 F.3d at 1082-87.
As to Mr. McClard’s objections to the Recommendation, the Court finds that these
objections largely restate arguments from Mr. McClard’s reply to Director Kelley’s response to
Mr. McClard’s habeas petition.

The Court approves and adopts the Recommendation’s

resolution of these arguments, and the dismissal of Mr. McClard’s petition, in their entirety.
Therefore, the Court dismisses with prejudice Mr. McClard’s petition for writ of habeas corpus
under 28 U.S.C. § 2254 (Dkt. No. 2-1). The Court denies a certificate of appealability pursuant
to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts.
SO ORDERED this 24th day of November, 2015.

_______________________________
Kristine G. Baker
United States District Judge

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