Craigg v. Hobbs

ANTHONY CRAIGG PETITIONER v. RAY HOBBS, Director of the Arkansas Department of Correction RESPONDENT

CASE NO. 5:14CV00288 DPM/HDY

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

October 10, 2014

PROPOSED FINDINGS AND RECOMMENDATIONS

INSTRUCTIONS

The following recommended disposition has been sent to United States District Court Judge D. P. Marshall Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.

2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.

3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.

From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

Mail your objections and "Statement of Necessity" to:

Clerk, United States District Court

Eastern District of Arkansas

600 West Capitol Avenue, Suite A149

Little Rock, AR 72201-3325

DISPOSITION

Petitioner Anthony Craigg seeks habeas corpus relief pursuant to 28 U.S.C. §2254. He is in the custody of the Arkansas Department of Correction (ADC) as a result of his 2011 rape conviction following a jury trial in Washington County Circuit Court. He was sentenced, as an habitual offender, to life imprisonment. On appeal to the Arkansas Supreme Court, Mr. Craigg argued that the trial court erred by allowing the prosecution to introduce a 1998 Oklahoma conviction for lewd molestation into evidence. The appeal was unsuccessful. Craigg v. State, 2012 Ark. 387. The petitioner sought Rule 37 relief in state court. Following a hearing¹, the trial court denied relief. The Arkansas Supreme Court dismissed the appeal, finding "it is clear from the record that appellant could not prevail if an appeal were permitted to go forward." Craigg v. State, 2014 Ark. 71. The petitioner also sought, without success, permission to file a belated appeal in state court. The petition for federal habeas corpus relief was filed on July 10, 2014.

He advances the following claims for relief:

1. The trial court erred in allowing the introduction of a highly prejudicial prior offense into evidence violating his right to a fair and impartial jury;2. The trial court and the Arkansas Supreme Court erred in ruling that the pedophile exception applied, which allowed for the introduction of the prior conviction;

3. He received ineffective assistance of counsel when his attorneys failed to object, move to strike, or move for a mistrial based upon the lack of 404(b) evidence; and

4. The Arkansas Supreme Court reconstructed petitioner's argument on direct appeal, depriving him of due process by failing to address his argument that the trial court erred when it admitted into evidence the prior conviction without any additional facts about the conviction.

The respondent contends these claims are without merit and/or procedurally barred. Specifically, the respondent contends grounds one and four were not raised as federal constitutional claims in state court and should be barred on that basis. Respondent contends ground two is procedurally barred due to the petitioner's failure to raise the claim on direct appeal. For the purpose of this Findings and Recommendation, we will liberally construe the pleadings and assume the grounds were adequately raised in state court, and consider the merits of the four arguments of Mr. Craigg. In considering this issue, we are guided by the following language of the Eighth Circuit Court of Appeals:

In cases such as this, it might well be easier and more efficient to reach the merits than to go through the studied process required by the procedural default doctrine. Recent commentary points up the problems with the cause and prejudice standard:

[T]he decision tree for habeas review of defaulted claims is intricate and costly. . . . In essence, Sykes and Strickland require habeas lawyers and federal judges and magistrates to work through the equivalent of a law school exam every time a defendant tries to escape procedural default.

McKinnon v. Lockhart, 921 F.2d 830, 833 n.7 (8th Cir. 1990) (quoting Jeffries & Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Corpus, 57 U.Chi.L.Rev. 679, 690 (1990)).

Trial Court error in admitting Oklahoma conviction into evidence: On direct appeal, the petitioner challenged the admission of the Oklahoma conviction, and the Arkansas Supreme Court summarized the facts and addressed this issue in the following fashion:

A Washington County jury convicted appellant Anthony Craigg of rape and sentenced him to life in prison without the possibility of parole. On appeal, he argues that the trial judge erred by allowing the introduction of a prior offense into evidence under Arkansas Rule of Evidence 404(b). Because appellant was convicted of rape and sentenced to life imprisonment without parole, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2). We affirm because the trial judge did not abuse his discretion in finding that appellant's prior conviction satisfied the pedophile exception to Rule 404(b).

On July 15, 2011, the State filed a felony information charging appellant with one count of rape and one count of failure to comply with sex offender registration requirements. Specifically, the State alleged that appellant engaged in oral sex with a victim who was physically helpless and unable to consent in violation of Arkansas Code Annotated section 5-14-103(a)(2) (Repl.2006). In an amended felony information, the State dropped the failure-to-register count and added a habitual-offender enhancement under Arkansas Code Annotated section 5-4-501 (Repl.2006).

On November 4, 2011, appellant filed a motion to determine the admissibility of his prior conviction in Oklahoma for lewd molestation during trial and for purposes of penalty enhancement. On November 21, 2011, the trial judge held a hearing on appellant's motion.

The first witness to testify was Detective Gregory Samuels of the Fayetteville Police Department. Samuels interviewed the fourteen-year-old victim, J.P., during the early morning hours of June 11, 2011, and summarized J.P.'s account of what happened between him and appellant as follows. J.P. explained that he had known appellant for about a month, and although they were not "friends," the two shared a common interest in scooters. On June 10, 2011, J.P. and appellant spent most of the afternoon working on appellant's scooter. Later that evening, J.P. and appellant decided to go camping. They set up a campsite at a wooded area on the south end of Fayetteville, which was not visible from nearby roads. At some point, J.P. fell asleep and awoke to find his shirt pulled up, his pants pulled down, and appellant leaning over him performing oral sex on him. J.P. then struck appellant's face with his knee, got up, grabbed appellant's shirt, wallet, and shoes, and ran to a nearby house to call the police.

The second witness to testify was Shannon Cozzoni, formerly a prosecutor in Creek County, Oklahoma, who prosecuted appellant for lewd molestation in 1998. Cozzoni's testimony was as follows. Some time in 1995, appellant was visiting the victim's mother's home and began "playing barbies" with the four-year-old victim in her bedroom. The victim's mother and possibly one other adult were in the home, but were asleep in another part of the house. The victim claimed that during their play session appellant pulled her pants down and "licked her pee-pee." Appellant was charged under a statute which provides that it is a felony to knowingly and intentionally "look upon, touch, maul, or feel the body or private parts of a child under 16 in a lewd and lascivious manner." [footnote omitted] Appellant pled guilty to this charge and was sentenced to twenty years' imprisonment with the first ten

suspended.

During oral argument before the trial judge, appellant claimed that his prior conviction was inadmissible under Arkansas Rule of Evidence 404(b). [footnote omitted] Specifically, appellant maintained that his prior conviction did not fall within any exception to Rule 404(b) because it had no independent relevance to the crime charged. He further contended that the pedophile exception was inapplicable because there was insufficient similarity between the two incidents, a significant amount of time had passed since the first incident, and there was no evidence that appellant had an intimate relationship with either victim.

The State, on the other hand, argued that appellant's prior conviction fit within the pedophile exception to Rule 404(b) because in each instance appellant engineered his assault by getting his victims alone and engaging them based on common interests. The State further pointed out that the nature of the assault was the same because appellant...