Smith v. Kelley
ORDER adopting 77 Report and Recommendations, as modified and supplemented. Smith's petition will be dismissed with prejudice. No certificate of appealabilty will issue. Signed by Chief Judge D. P. Marshall Jr. on 9/11/2020. (kdr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
WENDY KELLEY, Director,
Arkansas Department of Correction
Like many habeas cases, this one has become a thicket of
deference to the state court's decisions,
procedural default, adequacy of the state procedural bar, the Martinez
exception. The Magistrate Judge pressed through these issues with
vigor and care. This Court comes to the same place-dismissal of the
petition. But for many of Smith's claims, the Court concludes the
better route is to cut to the merits. McKinnon v. Lockhart, 921 F.2d
830, 833 n.7 (8th Cir. 1990) (per curiam). On de novo review, the Court
therefore adopts the Magistrate Judge's recommendation, Doc. 77, as
modified and supplemented here, and partly sustains Smith's
objections, Doc. 84.
R. Crv. P. 72(b)(3).
Freestanding Coercion Claim. Smith claims that his guilty plea
was coerced because the trial court judge made him wear a stun belt
under his clothes at trial. The Magistrate Judge concluded that the
Arkansas Supreme Court adjudicated this claim on the merits in
Smith's error coram nobis proceeding and that the decision was owed
deference under the statute. 28 U.S.C. § 2254(d). The Court agrees
that, to the extent the Arkansas Supreme Court adjudicated the merits
of Smith's freestanding coercion claim, this federal Court must defer
Further, that Court's factual determinations are presumed
correct. 28 U.S.C. § 2254(e)(l).
Smith argues hard, though, that the Arkansas Supreme Court
decided only a state law coercion claim - not his federal claim that the
stun belt rendered his plea involuntary. Doc. 84 at 2-26; Smith v.
State, 2017 Ark. 236, at *5, 523 S.W.3d 354, 358 (2017). He admits that
he did not raise this federal claim in his Arkansas Rule 37 petition;
but he argues that the claim is not defaulted because the state
procedural bar is inadequate.
The state circuit court dismissed
Smith's Rule 37 petition for failing to comply with the Rule's strict
Smith presses, however, that those
requirements are not "adequate" because they' re discretionary and
not uniformly enforced.
This is a creative argument; and it might be a winning one if
this claim were one of those rejected based on the formatting
But this claim wasn't raised in Smith's rejected
Rule 37 petition. Smith is therefore looking to the wrong procedural
His claim isn't defaulted because of Rule 37's formatting
requirements; it's defaulted because he didn't raise it at all and can't
do so now. Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir. 1995); Anderson
v. Kelley, E.D. Ark. No. 5:12-cv-279-DPM, Doc. 112 at B-1, 2017 WL
1160583, at *11 (28 March 2017).
So, even assuming Smith's freestanding coercion claim isn't
subsumed by the claim the Arkansas Supreme Court decided, it's
And because it's a freestanding claim and not an
ineffectiveness claim, Martinez's exception doesn't apply. The Court
may therefore reach the merits only if Smith can show cause and
actual prejudice. Murray v. Carrier, 477 U.S. 478 (1986).
Two notes about prejudice. First, it's not entirely clear whether
actual prejudice under Murray v. Carrier is judged by the same
standard as Strickland prejudice or by a slightly higher standard.
Clemons v. Luebbers, 381 F.3d 744, 752 n.5 (8th Cir. 2004). Because the
Court concludes that Smith can't show prejudice under the lower
Strickland standard, it's unnecessary to resolve that issue. Second,
the Court sustains Smith's objection about the correct standard for
assessing Strickland prejudice. Doc. 84 at 23-24. In guilty plea cases,
a petitioner must show a reasonable probability that, if not for the
alleged error, he wouldn't have pleaded guilty and would have
instead proceeded to trial.
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
But courts will not upset a plea solely because of post hoc assertions
from a defendant about how he would have pleaded" except for the
Lee v. United States, 137 S. Ct. 1958, 1967 (2017).
Instead, courts "look to contemporaneous evidence to substantiate a
defendant's expressed preferences." Ibid.
The record here doesn't show a reasonable probability that
Smith would have insisted on continuing with his trial but for the stun
belt. As Smith notes, he was adamant about proceeding to trial until
right before he accepted the plea offer; and that fact weighs in his
favor. But Smith raised no objection about the stun belt during the
colloquy with the circuit judge about wearing it. He said nothing
during the plea colloquy. He didn't mention it in the post-sentencing
letter he wrote to the judge. Doc. 40-2 at 224-26. He didn't raise it
in his Rule 37 petitions or his state habeas petition and reply. Doc.
40-2 at 235-42 & 250-58;
Doc. 40-6 at 4-10 & 55-58.
appears that the first time Smith claimed the stun belt was coercive
was during his state habeas appeal. Smith v. Hobbs, 2015 Ark. 312, at
*4, 468 S.W.3d 269, 273 (2015) .
In short, no contemporaneous
evidence supports Smith's assertion that he would have continued
with his trial but for the stun belt. His coercion claim is inexcusably
lneffectiveness Claim Based On Stun Belt.
freestanding coercion claim, Smith's related ineffectiveness claim is
defaulted because Smith didn't attempt to raise it in his Rule 37
petition. Martinez provides a path here, but it goes nowhere: the
Court's conclusion about prejudice dooms this claim, too.
defa ult can't be excused.
Conflict Of Interest. Smith's conflict of interest claim fails on
the merits. The record doesn't support a conclusion that the alleged
conflict adversely affected his lawyer's representation.
United States, 293 F.3d 501, 503 (8th Cir. 2002). And given the Court's
conclusion about the stun belt's lack of effect on Smith's decision to
plead guilty, the record doesn't show that the alleged conflict
undermined the voluntary nature of Smith's plea. Ibid.
ineffectiveness claims fail on the merits, too. Because Smith pleaded
guilty, the focus here "is the nature of the advice and the
voluntariness of the plea, not the existence as such of an antecedent
Tollett v. Henderson, 411 U.S. 258, 266
(1973). To succeed on any of the remaining ineffectiveness claims,
Smith must show that his lawyer's advice to plead guilty "was not
within the range of competence demanded of attorneys in criminal
Further, in assessing counsel's performance, the
Court must "eliminate the distorting effects of hindsight" and
"evaluate the conduct from counsel's perspective at the time."
Strickland v. Washington, 466 U.S. 668, 689 (1984).
Smith says that his lawyer was ineffective for advising him to
plead guilty despite a possible speedy trial violation, lingering
suppression and Franks issues, and potential evidentiary challenges.
But Smith was entitled to a competent lawyer - not a perfect lawyer
who would bird-dog every conceivable factual and legal issue or
advise Smith about every possible defense.
Tollett, 411 U.S. at
267-68. None of Smith's arguments is so clearly meritorious that his
lawyer was constitutionally ineffective for advising Smith to plead
guilty before pursuing the point. Smith's remaining ineffectiveness
claims therefore fail.
Smith's petition will be dismissed with prejudice.
No certificate of appealability will issue. 28 U.S.C. § 2253(c)(l)-(2).
The Court appreciates appointed counsel's thorough, zealous, and
D .P. Marshall Jr.
United States District Judge
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