Heard v. Hobbs

BRIAN K. HEARD PETITIONER v. RAY HOBBS, Director of the Arkansas Department of Correction RESPONDENT

CASE NO. 5:12CV00446 SWW/HDY

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

Dated: March 13, 2014

PROPOSED FINDINGS AND RECOMMENDATIONS

INSTRUCTIONS

The following recommended disposition has been sent to United States District Court Judge Susan Webber Wright. 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

Brian K. Heard seeks a writ of habeas corpus pursuant to 28 U.S.C. §2254. Mr. Heard is currently in the custody of the Arkansas Department of Correction (ADC) as a result of pleading guilty in 2009 to four counts of delivery of a controlled substance. A sentencing hearing was conducted, and Mr. Heard was sentenced as an habitual offender to consecutive sentences totaling 100 years. Mr. Heard sought relief pursuant to Rule 37 in state court, claiming that his guilty pleas were involuntary. The trial court denied relief, and this decision was affirmed on appeal. Heard v. State, 2012 Ark. 67. Mr. Heard filed the Rule 37 petition pro se but was represented by counsel at the Rule 37 hearing and on appeal in the Rule 37 proceedings. He is represented by counsel in this case. Here, he advances the following claims for habeas corpus relief:

1. Petitioner was coerced into pleading guilty when his attorney asked for an additional $5,000.00 and petitioner believed he had no choice but to plead guilty to the charges;

2. Petitioner received ineffective assistance of counsel when his trial attorney failed to inform him of the possibility of entering a conditional guilty plea and attacking the trial court's denial of his motion to suppress;

3. Petitioner received ineffective assistance of counsel when his trial attorney failed to inform him of the extent of his exposure if he allowed the trial court to determine the sentence without a recommendation of the State;

4. Petitioner received ineffective assistance of counsel when his trial attorney failed toinform him about the sentence he could expect from the trial court if he allowed the trial court to sentence petitioner without a recommendation from the State; and

5. Petitioner received ineffective assistance of counsel when his trial attorney failed to call any witnesses or to provide any reason for the trial court to grant leniency to the petitioner.

The respondent contends that the claims are not properly before this Court due to the petitioner's failure to adequately raise the claims in a properly filed state postconviction petition, as required by Wainwright v. Sykes, 433 U.S. 72 (1977), and its progeny. Specifically, the respondent contends that Mr. Heard raised his allegations that his attorney was ineffective for failing to advise that he could enter a conditional guilty plea and for failing to fully inform him of his sentencing exposure at the trial level but failed to raise these claims on his Rule 37 appeal. Further, the respondent contends Mr. Heard did not raise the claim of ineffective assistance of counsel for failing to present witnesses at the sentencing hearing in state court at either the trial or appellate level. By previous Court Order the petitioner was notified of his opportunity to explain why the claims are not procedurally barred, and the petitioner has filed a responsive pleading. Docket entry no. 20. We will first consider whether some or all of the grounds¹ are procedurally barred, then address the merits of claims properly before the Court.

Procedural Default: In Wainwright v. Sykes, supra, the United States Supreme Court held that a federal court should not reach the merits of a litigant's habeas corpus allegation if he has procedurally defaulted in raising that claim in state court: that is, if he was aware of the ground, but failed to pursue it to a final determination. The exception created by the Supreme Court permits such an allegation to be addressed if the litigant can establish "cause" for his failure to assert the known ground and "prejudice" resulting from that failure. See, also, Clark v. Wood, 823 F.2d l24l,1250-51 (8th Cir. 1987); Messimer v. Lockhart, 822 F.2d 43, 45 (8th Cir. 1987). The Wainwright v. Sykes cause and prejudice test was clarified by two subsequent Supreme Court decisions, Smith v. Murray, 477 U.S. 527 (1986), and Murray v. Carrier, 477 U.S. 478 (1986).

With respect to cause, these cases explain that the Court has "declined in the past to essay a comprehensive catalog of the circumstances that [will] justify a finding of cause." Smith v. Murray, 477 U.S. 533-34. However, one can discern from these cases several circumstances in which cause might be found: first, where some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rules, see Murray v. Carrier, 477 U.S. at 488; second, where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, see Reed v. Ross, 468 U.S. 1 (1984); or third, if the litigant failed to receive the effective assistance of counsel. See Murray v. Carrier, 477 U.S. at 488. In addition, there is one extraordinary circumstance where a federal habeas court may grant relief without a showing of cause: where a constitutional violation has probably resulted in the conviction of one who is actually innocent. Id. at 496.

Our initial inquiry is if and how the claims were raised in state court. Since Mr. Heard entered guilty pleas, no direct appeal was available. He did file a Rule 37 petition, and a hearing was conducted on this petition. In the Rule 37 petition Mr. Heard alleged the following grounds for relief: (1) trial counsel's advice to plead guilty and allow the trial court to sentence him was unprofessional and unreasonable; (2) trial counsel was ineffective for failing to inform petitioner of his right to enter a conditional plea of guilty and appeal the trial court's denial of his motion to suppress; (3) Trial counsel was ineffective for failing to seek to withdraw the plea due to a manifest injustice; (4) Failure to adhere to the plea agreement; and (5) Facial invalidity of the judgment and commitment due to an erroneous date on the document. Docket entry no. 10, pages 106-113. The trial court addressed all five claims in its decision denying Rule 37 relief. Docket entry no. 10, pages 133-134). On appeal, the petitioner argued that his guilty plea was coerced and that his trial counsel was ineffective. Heard v. State, 2012 Ark. 67. The Arkansas Supreme Court described theclaims on appeal as petitioner's contentions "that counsel's actions coerced him into accepting the plea agreement, and that, but for counsel's unethical conduct and errors, he would not have entered a guilty plea." Id.

Our review of the state court proceedings persuade us that the petitioner presented ground one in state court, both at the trial and appellate level. As a result, this ground is properly before this Court. There is some confusion on whether the petitioner raised more than this ground on appeal of his Rule 37 petition, as the Arkansas Supreme Court noted the petitioner raised "a single point on appeal" but also described the allegations as a claim that the "trial court should have found appellant's guilty plea was coerced and that trial counsel was ineffective." 2012 Ark. 67 (emphasis added). The petitioner, in his explanatory pleading, concedes that ground 5 was not raised in state court and is therefore procedurally barred. The petitioner argues that grounds two and three/four (a single claim) were not addressed on appeal of his Rule 37 petition due to ineffective assistance of counsel by his appellate lawyer. Out of an abundance of caution, we will assume that grounds two and three/four were raised in state court or that there was cause for them not being considered in the state forum. In making this decision, 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

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