Green v. Hobbs

Filing 58

ORDER APPROVING AND ADOPTING 43 FINDINGS AND RECOMMENDATIONS in their entirety as this Court's findings in all respects; finding that no evidentiary hearing is necessary; denying all pending motions as moot; denying a certificate of appealability; and directing the Clerk of the Court to file the attached letter separately as Mr. Green's notice of appeal. Signed by Judge Kristine G. Baker on 10/16/2014. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JAMES EDWARD GREEN, JR.,
ADC #113001
v.

PETITIONER

Case No. 5:14-cv-00009-KGB/HDY

RAY HOBBS, Director of the
Arkansas Department of Correction

RESPONDENT
ORDER

The Court has received the Findings and Recommendation from Magistrate Judge H.
David Young (Dkt. No. 43). In response, petitioner James Edward Green, Jr., filed an objection
(Dkt. No. 50) and a statement of necessity (Dkt. No. 51). After a careful review of the Findings
and Recommendation, the timely objection and statement of necessity received thereto, and a de
novo review of the record, the Court concludes that the Findings and Recommendation should
be, and hereby are, approved and adopted in their entirety as this Court’s findings in all respects.
The Court determines no evidentiary hearing is necessary and denies all pending motions as
moot.
Pursuant to 28 U.S.C. § 2253 and Rule 11 of the Rules Governing Section 2554 Cases in
the United States District Court, the Court must determine whether to issue a certificate of
appealability. In § 2254 cases, a certificate of appealability may issue only if the applicant has
made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(1)-(2).
The Court finds no issue on which Mr. Green has made a substantial showing of a denial of a
constitutional right. Thus, the certificate of appealability is denied.
The Court writes separately to address Mr. Green’s objections. First, Mr. Green objects
to Judge Young’s treatment and dismissal of his actual innocence claim. Mr. Green appears to

argue that Judge Young applied the incorrect standard to his actual innocence claim by
characterizing it a “stand-alone” claim instead of a “gateway” claim. Mr. Green is mistaken. A
gateway actual innocence claim allows habeas petitioners to overcome a procedural bar to
consideration of the merits of their other constitutional claims. See McQuiggin v. Perkins, 133 S.
Ct. 1924, 1928 (2013); Nooner v. Hobbs, 689 F.3d 921, 926 (8th Cir. 2012). Because Judge
Young chose not to wrestle with the procedural bar question and instead addressed the merits of
Mr. Green’s other constitutional claims, including his challenges to the sufficiency of the
evidence, and because this Court agrees with and adopts Judge Young’s Findings and
Recommendation on the merits, it is unnecessary to determine whether Mr. Green has proven his
gateway actual innocence claim.
As for a stand-alone claim of actual innocence, the Supreme Court has suggested that,
where the underlying state trial is not tainted by any prejudicial constitutional error, as is the case
here, a stand-alone actual innocence claim still may be cognizable and provide an avenue for
habeas relief. Nooner, 689 F.3d at 922 n.7; see McQuiggin, 133 S.Ct. at 1931 (“We have not
resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of
actual innocence”). However, individual justices have stated that the standard for any potentially
cognizable stand-alone actual innocence claim would be more stringent than that required to
prove actual innocence for gateway purposes. Nooner, 689 F.3d at 922 n.7 (citing Herrerra v.
Collins, 506 U.S. 390, 426 (1993) (O’Connor, J., concurring)). Judge Young addressed the
possibility that Mr. Green meant to bring a stand-alone actual innocence claim, assuming that
such a claim is cognizable, and found that Mr. Green had not met “the extraordinarily high
standard applicable to such a claim” (Dkt. No. 43, at 17 n.4). This Court agrees.

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Second, Mr. Green points to the alleged affidavit of Earl Railey, one of the jurors in Mr.
Green’s state case, to argue that the Risk Assessment and Offender Profile Report (“Report”)
was given to the jurors at the guilt phase of his trial and that he was prejudiced by his attorney’s
failure to object to the admission of the Report at the sentencing phase of the trial. Specifically,
the written statement, an affidavit attributed to Mr. Railey but not signed by him, states that
“[t]he risk assessment and offender profile report caused me to vote the way I voted” (Dkt. No.
5-1, at 6).
Even assuming that Mr. Railey’s written statement would be competent evidence under
Federal Rule of Evidence 606(b), and assuming the truth of this written statement, it does not
show that the Report was given to jurors at the guilt phase of the trial. The written statement
does not indicate whether Mr. Railey based his guilty vote or his vote on the jury’s sentence
recommendation on the Report, despite Mr. Green’s claims that Mr. Railey meant with his
written statement to indicate the Report influenced his guilty vote. The Arkansas Supreme Court
found that, according to the record, the Report was introduced into evidence and considered by
the jury only during the sentencing phase of the trial. Green v. State, No. CR-13-517, 2013 WL
5968933, at *6 n.3 (Ark. 2013). The trial transcript supports the Arkansas Supreme Court’s
finding (Dkt. No. 27-2, at 263-69). Without evidence to the contrary besides Mr. Green’s own
assertions, this Court determines that the Arkansas Supreme Court’s finding was not an
unreasonable determination of fact. See 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by
an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a
State court, a determination of a factual issue made by a State court shall be presumed to be
correct.”); Perry v. Kemna, 356 F.3d 880, 883 (8th Cir. 2004) (“This presumption of correctness

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applies to factual determinations made by state courts, whether the court be a trial court or an
appellate court.” (citations omitted) (internal quotation marks omitted)).
The written statement also does not show that Mr. Green was prejudiced by his attorney’s
failure to object to the introduction of the Report at the sentencing phase of the trial. The Report
contained information regarding Mr. Green’s level 4 sex offender status, his prior convictions,
and a prior rape charge for which he was acquitted, as well as what Mr. Green calls
“testimonials” or details of such offenses (Dkt. No. 5, at 126-28). The Arkansas Supreme Court
found no prejudice because other admitted evidence made the jury aware of Mr. Green’s sex
offender status, prior convictions, and rape charge acquittal (Dkt. No. 27-2, at 275-76, 327-345),
and because evidence otherwise supported the jury’s recommended total sentence. Green, 2013
WL 5968933, at *7. As Judge Young explained, the Arkansas Supreme Court’s finding was not
an unreasonable application of clearly established federal law. Even with Mr. Railey’s written
statement, the Arkansas Supreme Court reasonably determined that there was not “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Cochran v. Dormine, 701 F.3d 865, 869 (8th Cir. 2012).
Third, Mr. Green objects to Judge Young’s treatment of his claim that introduction of the
Report at the sentencing phase of his trial violated his rights under the Double Jeopardy Clause.
The general rule is that “double jeopardy protections [are] inapplicable to sentencing proceedings
. . . because the determinations at issue do not place a defendant in jeopardy for an ‘offense.’”
Monge v. California, 524 U.S. 721, 728 (1998); see also Witte v. United States, 515 U.S. 389,
400-02 (1995) (holding that consideration of uncharged but related cocaine importation in order
to impose higher sentence within statutorily authorized range for marijuana charges did not
impose “punishment” for cocaine conduct for double jeopardy purposes); United States v. Webb,

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545 F.3d 673, 678 (8th Cir. 2008) (finding that district court’s determination at sentencing of a
drug quantity in excess of that found by the jury did not violate the Double Jeopardy Clause
because “[t]he double jeopardy clause generally has no application in the sentencing context”
and “drug quantity is not an element of the offense in this case”). This Court agrees with Judge
Young that admission of the Report did not violate Mr. Green’s protection against double
jeopardy.
Mr. Green also sent a letter to this Court regarding his intent to file a notice of appeal
should the Court adopt the Findings and Recommendation. That letter is attached. The Clerk of
the Court is directed to file this letter separately as Mr. Green’s notice of appeal.
SO ORDERED this the 16th day of October, 2014.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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