Townsell v. Hobbs

Filing 21

ORDER approving and adopting 9 Proposed Findings and Recommendations in their entirety as this Court's findings in all respects and dismissing Mr. Townsell's 2 petition for writ of habeas corpus. The requested relief is denied. Signed by Judge Kristine G. Baker on 07/07/2015. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
LOUIS CURTIS TOWNSELL
ADC #146082
v.

PETITIONER

Case No. 5:14-cv-00289-KGB-JJV

WENDY KELLEY, Director,
Arkansas Department of Correction

RESPONDENT
ORDER

The Court has reviewed the Proposed Findings and Recommendations submitted by
United States Magistrate Judge Joe J. Volpe (Dkt. No. 9) and the filed objections (Dkt. Nos. 16,
20). After carefully considering the objections and making a de novo review of the record, the
Court concludes that the Proposed Findings and Recommendations should be, and hereby are,
approved and adopted in their entirety as this Court’s findings in all respects.
The Court writes separately to address petitioner Louis Curtis Townsell’s objections to
the dismissal of his ineffective assistance of appellate counsel claim. Mr. Townsell claims that
his appellate counsel should have claimed that the trial court judge erred by not instructing the
jury on the lesser included offense of aggravated assault. Because the Arkansas Supreme Court
was not afforded an opportunity to review this ineffective assistance of appellate counsel claim,
it is procedurally defaulted.
Mr. Townsell appears to argue that he has established “cause” to excuse his procedural
default because he was impeded or obstructed in complying with the State’s established
procedures by the trial court judge. See Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012) (“The
rules for when a prisoner may establish cause to excuse a procedural default . . . reflect an
equitable judgment that only where a prisoner is impeded or obstructed in complying with the

State’s established procedures will a federal habeas court excuse the prisoner from the usual
sanction of default.” (citations omitted)). Mr. Townsell asserts that he did not pursue his postconviction appeal pursuant to Arkansas Rule of Criminal Procedure 37 because the trial court,
which was also Mr. Townsell’s sentencing court, dismissed it for lack of jurisdiction at a hearing
and never issued a written finding, leading him to believe that the appellate court would also lack
jurisdiction. Indeed, the trial court judge told Mr. Townsell that he needed to make this claim in
an appellate court and that “I can’t do anything about your appellate counsel, the ones who took
it over after it left here. I don’t have anything to do with that” (Dkt. No. 17-1, at 4). However,
as Judge Volpe pointed out, and apparently contrary to the trial court judge’s statement, a Rule
37 petition “may [be] file[d] . . . in the court that imposed the sentence.” Ark. R. Crim. P.
37.1(a).
In support of his argument that he has shown cause, Mr. Townsell only cites Martinez.
To the extent that Mr. Townsell argues that he was impeded or obstructed by his lack of counsel,
the Court notes that Martinez does not apply to ineffective assistance of appellate counsel
claims, which means the ruling in Martinez cannot lead to a showing of “cause.” Dansby v.
Hobbs, 766 F.3d 809, 833 (8th Cir. 2014) (“Martinez focused on a ‘claim of ineffective
assistance at trial.’” (quoting Martinez, 132 S. Ct. at 1315)). Moreover, nothing prevented Mr.
Townsell from appealing the trial court’s dismissal or refiling his Rule 37 petition if that was
required. The Court determines that the trial court judge’s actions did not make Mr. Townsell’s
compliance with the State’s procedural rules impracticable such that cause has been shown. See
Strickler v. Greene, 527 U.S. 263, 284 n.24 (1999) (“[W]e think that the existence of cause for a
procedural default must ordinarily turn on whether the prisoner can show that some objective
factor external to the defense impeded counsel’s efforts to comply with the State’s procedural

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rule. Without attempting an exhausting catalog of such objective impediments to compliance
with a procedural rule, we note that a showing that the factual or legal basis for a claim was not
reasonably available to counsel or that some interference by officials made compliance
impracticable, would constitute cause under this standard.” (alteration in original) (citations
omitted) (internal quotation marks omitted)). Mr. Townsell has not cited, and the Court has not
found, a case suggesting otherwise. Lastly, even if Mr. Townsell had shown cause, based on the
record before the Court, Mr. Townsell has not shown prejudice. Mr. Townsell has not shown
that his claim has merit and makes no argument that the jury’s verdict would have been different
had the instruction been included. See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(holding that a petitioner must show that “his counsel’s representation fell below an objective
standard of reasonableness” and that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”).
Accordingly, Mr. Townsell’s petition for writ of habeas corpus is dismissed (Dkt. No. 2).
The requested relief is denied.
SO ORDERED this the 7th day of July, 2015.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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