Jackson v. Payne

1

ANDREW LEE JACKSON PETITIONER v. DEXTER PAYNE, Director, Arkansas Department of Correction RESPONDENT

No. 6:19-cv-6049

United States District Court, W.D. Arkansas, Hot Springs Division

May 27, 2022

ORDER

Susan O. Hickey, Chief United States District Judge.

Before the Court is the Report and Recommendation filed March 10 2022, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 74). Judge Bryant recommends that the instant habeas petition should be denied in its entirety and that no certificate of appealability should issue. Petitioner Andrew Lee Jackson objects. (ECF No. 75). Respondent Dexter Payne has responded to the objections. (ECF No. 76). The matter is ripe for consideration. For the following reasons, the report and recommendation will be adopted.

I. BACKGROUND

Petitioner was charged with rape in two separate criminal cases for having sexual intercourse with two teenaged girls. Petitioner's trial counsel successfully moved to consolidate the two cases. Petitioner proceeded to trial on March 27, 2017, at the conclusion of which a Garland County Circuit Court jury found him guilty on two counts of rape.0F^[1]Petitioner was sentenced to forty years of imprisonment on each count, to be served consecutively. Petitioner appealed to the Arkansas Court of Appeals, which affirmed the convictions on April 4, 2018. See generally Jackson v. State, 2018 Ark.App. 222, 547 S.W.3d 753.

Petitioner obtained new counsel for postconviction proceedings and, on June 20, 2018, filed a petition for relief pursuant to Arkansas Rule of Criminal Procedure 37 in the Garland County Circuit Court. Before filing, Petitioner's postconviction counsel was unable to bring the necessary Rule 37 paperwork into Petitioner's prison for him to personally review and sign before the expiration of the filing deadline, so counsel signed the documents on Petitioner's behalf. The trial court dismissed the petition as improperly verified because the Arkansas Rules of Criminal Procedure require a Rule 37 petitioner to personally sign and verify his or her petition. Petitioner appealed to the Arkansas Court of Appeals, which affirmed the dismissal on February 20, 2019. See generally Jackson v. State, 2019 Ark.App. 104, 572 S.W.3d 458.

On April 16, 2019, Petitioner filed in this Court the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The petition alleged six claims for relief: (1) ineffective assistance of trial counsel; (2) sufficiency of the evidence; (3) violation of Petitioner's right to a speedy trial; (4) violation of due process; (5) error in dismissing the Rule 37 petition; and (6) violation of Petitioner's Eighth Amendment rights. On October 22, 2020, Judge Bryant held a lengthy hearing on the petition and allowed the parties to submit post-hearing findings of fact and conclusions of law.

On March 25, 2021, Judge Bryant issued a report and recommendation, recommending that all claims for relief, other than Petitioner's challenge regarding the dismissal of his Rule 37 petition, should be dismissed because Petitioner has procedurally defaulted on each claim. (ECF No. 60). Judge Bryant also recommended that the Court dismiss Petitioner's challenge to the dismissal of the Rule 37 petition because the Court lacks jurisdiction to review state law errors on federal habeas review. Petitioner objected, and Respondent responded to the objections.

On February 7, 2022, the Court adopted the report and recommendation in part. (ECF No. 71). The Court denied and dismissed all of Petitioner's claims for habeas relief except the first claim regarding ineffective assistance of trial counsel. The Court then recommitted that claim to Judge Bryant to determine whether a procedural default of the claim could be set aside pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).

On March 10, 2022, Judge Bryant issued the instant report and recommendation. (ECF No. 74). Judge Bryant recommends that the Court deny and dismiss Petitioner's remaining claim for habeas relief because it is procedurally defaulted, and because Petitioner has not satisfied the requirements to set aside the procedural default under Martinez. Petitioner objects.

II. DISCUSSION

The Court may designate a magistrate judge to hear pre- and post-trial matters and to submit to the Court proposed findings of fact and recommendations for disposition. 28 U.S.C. § 636(b)(1). Within fourteen days of receipt of a magistrate judge's report and recommendation, “a party may serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2); accord W.D. Ark. Local Rule 72.2(VII)(C). After conducting an appropriate review of the report and recommendation, the Court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge . . . or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1).

“[T]he specific standard of review depends, in the first instance, upon whether or not a party has objected to portions of the report and recommendation.” Anderson v. Evangelical Lutheran Good Samaritan Soc'y, 308 F.Supp.3d 1011, 1015 (N.D. Iowa 2018). Timely and specific objections will generally trigger de novo review. See Thompson v. Nix, 897 F.2d 356, 358-59 (8th Cir. 1990). A “clearly erroneous” standard of review applies to the portions of a report and recommendation that are not objected to. See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996).

Following the Court's partial adoption of Judge Bryant's first report and recommendation, Petitioner's sole remaining claim for habeas relief is for ineffective assistance of trial counsel. Within that claim, Petitioner raises thirteen different instances of alleged ineffective assistance of his trial counsel, each of which he contends warrants a new trial.

A habeas petitioner must “fairly present” his or her claims in state court before seeking habeas relief in federal court. See Murphy v. King, 652 F.3d 845, 848-49 (8th Cir. 2011); see also 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus . . . shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State”). When a petitioner fails to fully exhaust his claims in state court, and the time to do so has passed, the petitioner's claims are procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 73132 (1991).

Judge Bryant finds that Petitioner procedurally defaulted on his ineffective-assistance-at-trial claim. Petitioner does not argue otherwise. Thus, there appears to be no dispute that Petitioner procedurally defaulted on the claim. The issue now becomes whether the procedural default may be set aside. Judge Bryant finds that it cannot, and thus recommends that the Court deny and dismiss the remainder of the instant habeas petition.

Federal habeas review of a procedurally defaulted claim is barred unless the petitioner can: (1) demonstrate “cause” for the default and “actual prejudice” because of the alleged violation of federal law, or (2) otherwise demonstrate that the failure to consider his habeas claim will result in a “fundamental miscarriage of justice.” Id. at 750. To establish “cause, ” the petitioner must “show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rules.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice, the petitioner must show not that “the errors at . . . trial created a possibility of prejudice, ” but that a constitutional violation “worked to his actual and substantial disadvantage.” Id. at 949 (emphasis in original).

Where there is no constitutional right to counsel, there can be no deprivation of effective assistance. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (per curiam). “There is no constitutional right to an attorney in state post-conviction proceedings.” Coleman, 501 U.S. at 752. This means that generally, ineffective assistance of counsel during state post-conviction proceedings cannot serve as cause to excuse factual or procedural default. See id. at 752-55.

In one narrow exception, though, a habeas petitioner can avoid procedural default when ineffective assistance of postconviction counsel in an initial-review state collateral proceeding caused a procedural default that bars the petitioner from presenting a claim of ineffective assistance of trial counsel for federal habeas review. See Martinez, 566 U.S. at 17; see also Trevino v. Thaler, 569 U.S. 413, 429 (2013) (holding that Martinez applies if a state's judicial system effectively forecloses direct review of ineffective-assistance-at-trial claims); Thomas v. Payne, 960 F.3d 465, 469 (8th Cir. 2020) (describing Martinez as applied to Arkansas habeas petitioners). “Cause” exists under Martinez to set aside a procedural default if Petitioner shows: “(1) the claim of ineffective assistance of trial counsel was a ‘substantial' claim; (2) the ‘cause' consisted of there being ‘no counsel' or only ‘ineffective' counsel during the state collateral review proceeding; and (3) the state collateral review proceeding was the ‘initial' review proceeding with respect to the ineffective assistance of trial counsel claim.” Dansby v. Hobbs, 766 F.3d 809, 834 (8th Cir. 2014); see also Sasser v. Hobbs, 735 F.3d 833, 853 (8th Cir. 2013).

Petitioner's objections can be divided into four categories. First, he argues that the Court should set aside the entire report and recommendation and conduct an entirely de novo review because Judge Bryant failed to address the issue the Court recommitted to him. Second, he argues that “cause” exists to...