Gingras v. Weber (CA8)

Gingras v. Weber, No. 07-3114 — The court affirmed the denial of a § 2254 petition challenging a conviction for selling marijuana.  The petitioner’s home was searched pursuant to a warrant, and the petitioner gave a statement to the police after being informed of his Miranda rights.  He filed a motion to suppress the statement before trial, which the trial court did not resolve before the petitioner pleaded guilty pursuant to a plea agreement.  The petitioner had claimed — and the Eighth Circuit ultimately considered on appeal — that trial counsel was ineffective for failing to tell him that the motion to suppress the statement had not yet been ruled on at the time he pleaded guilty, and that but for that failure he would not have pleaded.

Despite the possibility that there existed an avenue under South Dakota law for the petitioner to resolve the claim in state court, the Eight Circuit addressed the merits.  Under the pre-AEDPA standard of review, the court concluded that there was “scant support in the record” for the idea that the petitioner’s statement to the police was not voluntarily made.  He was initially upset and crying when the police came to his house, but he had calmed down sufficiently to talk to the police in a calm and coherent manner.  There was no coersion on the police’s part.  These conclusions were reasonable, and did not suggest that the trial court would have granted the motion to suppress.  Consequently, there was no prejudice under Strickland and Hill v. Lockhart, 474 U.S. 52 (1985).

The petitioner had sought an evidentiary hearing in federal court on this claim.  The Eighth Circuit affirmed the denial of the hearing, because the petitioner was not diligent in pursuing a hearing as to this claim.  The state habeas court did hold a hearing, but only on a different claim, and there was no indication that the petitioner had sought to bring this claim before the state courts on habeas review.  Consequently, he “failed to develop” the claim in state court, and was not entitled to a hearing under 28 U.S.C. § 2254(e)(2).

CA8 — memorandum dispositions

Cantrell v. Norris, No. 07-1847 — The court affirmed the denial of a preliminary injunction asking state-court clerks to adhere to the federal prison mailbox rule.

Ridling v. Norris, No. 07-1852 — Counsel was not ineffective for failing to inform the petitioner that Arkansas law required him to serve 70% of a sentence before being eligible for parole.  The state courts had found that counsel fully informed the petitioner about the consequences of his plea and the consequences of refusing to accept it, and the petitioner did not rebut the presumption that those findings were correct.

CA8 — memorandum disposition

Ivy v. Sanders, No. 07-2663 — The district court could not entertain a § 2241 petition asserting an actual innocence claim, where the petitioner had already litigated it in a § 2255 motion.

Lopez v. U.S. (CA8)

Lopez v. U.S., No. 07-3685 (CA8) — The petitioner pleaded guilty to a drug distribution consipracy and firearms charges.  He received a 135-month sentence, but did not file a direct appeal.

He filed a 2255 motion, asserting that counsel was ineffective for failing to file a direct appeal even though he asked counsel to do so.  The government sought dismissal, noting it was filed 15 months after the petitioner’s conviction became final.  The district court denied the motion as untimely, ruling that the petitioner was not diligent in discovering that counsel had not filed his direct appeal.

The petitioner had alleged that he was unable to communicate with anyone during the first five months of his incarcertaion, due to “repeated transfers” between prisons.  He then alleged that he assumed an appeal had been filed, and all he had to do was wait.  After some time, he began to suspect that no appeal had been filed.  He then contacted his trial lawyer and asked for a copy of his file.  The attorney sent him a copy of the judgment and commitment order.  By this time, the time to file a 2255 motion had passed.

“These allegations are not indicative of a reasonably diligent quest for information.”  The court faulted the petitioner for not alleging why he was not able to contact anyone during the first months of his sentence.  In fact, the court noted, the petitioner waited a year before even contacting the attorney in question.  “Moreover, there is every reason to believe that more prompt action on [the petitioner's] part would have revealed counsel’s failure to notice an appeal more than one year before he filed his motion.”  The fact of the pending appeal was a matter of public record (how was he supposed to know?) that a duly diligent person in the petitioner’s shoes could have discovered before the one-year period ended.

Johnson v. Norris ( CA 8 )

Johnson v. Norris, No. 07-3058 ( CA 8 ) — After protracted state direct appeal and post-conviction proceedings in the Arkansas courts, during which the murder conviction was initially overturned on appeal and a post-conviction relief proceeding was remanded for further proceedings, a federal district court denied habeas relief but certified several issues for appeal.  The Eighth Circuit affirmed.

The petitioner asserted that Arkansas’s psychotherapist-patient privilege, codified at Ark. R. Evid. 503, impeded his constitutional right to present a defense.  The petitioner asserted at trial that he needed the psychologist’s records in order to challenge the competence of a witness.  The Eighth Circuit ruled that this was not an unreasonable application of federal law.  There was no need to require in camera inspection of the records as a matter of federal constitutional law.  The Eighth Circuit had previously rejected a similar claim in the face of an absence of clearly established law holding that the constitutional rights of the accused can overcome an evidentiary privilege.  Without citing Carey v. Musladin, 127 S. Ct. 649 (2006), the Eighth Circuit reaffirmed this rule to conclude that the Arkansas courts’ ruling in this case was not contrary to clearly established federal law.

The Arkansas courts also did not unreasonably reject a claim of ineffective assistance of counsel relating to a pre-trial suppression hearing, the subject of which was a statement the petitioner had made to Albuquerque police at the time of his arrest.  Failure to challenge the statement by way of a written motion was not deficient performance in light of the fact that trial counsel had amply contested the statement at the hearing.  Trial counsel’s decision not to call the petitioner to testify at the pretrial hearing was a reasonable tactical decision, because it was clear that lead trial counsel had explained to the petitioner the danger of his testifying at the hearing.  The state courts’ rejection of this IAC claim was not an unreasonable application of federal law.

Likewise, trial counsel’s failure to challenge the exclusion of favorable evidence under Ark. R. Evid. 403 was not ineffective assistance of counsel, and the state courts’ determination on that score was not unreasonable.

The petitioner argued that Arkansas’s “especially cruel” aggravating factor was unconstitutionally vague.  The Arkansas Supreme Court had ruled, in Greene v. State, 878 S.W.2d 384 (Ark. 1994), that the “especially cruel” aggravating factor was not unconstitutionally vague.  The state court’s rejection of this argument was not an unreasonable application of either Walton v. Arizona, 497 U.S. 639 (1990), or Arave v. Creech, 507 U.S. 463 (1993).  Likewise, the Arkansas Supreme Court’s rejection of the petitioner’s claim relating to victim impact evidence was not an unreasonable application of federal law.

Finally, the Eighth Circuit rejected the petitioner’s claim that a change of venue deprived him of a trial by a jury drawn from a fair cross section of the community was foreclosed by circuit law.  Although the claim had exhaustion difficulties, the court addressed it in order to deny it on the merits.  Eighth Circuit precedent interpreted the fair cross-section requirement as applying to the community from which the jury pool was drawn, not the community in which the crime had been committed.  Accordingly, this claim lacked merit.

Forsyth v. Ault ( CA8 )

Forsyth v. Ault, No. 07-2839 ( CA8 ) — The petitioner in this case was convicted of murdering his estranged wife, his three children, and two children of his wife’s boyfriend.  The issues in this case surround trial counsel’s efforts to challenge the petitioner’s competence to stand trial and to present defenses of insanity or diminished capacity, and appellate counsel’s failure to raise the deficiencies of trial counsel in this regard.  Five psychiatrists evaluated the petitioner during his state-court proceedings — four in anticipation of trial, and the fifth during state post-conviction proceedings.  The four pretrial psychiatrists all agreed that the petitioner had been competent to stand trial; two of them agreed that the petitioner was not legally insane, and two of them believed there was not enough evidence to determine whether he was legally insane.  The post-conviction psychiatrist opined that the petitioner both had not been competent to stand trial and also had been legally insane.  Before the crimes, the petitioner had a long history of clinical depression, the intensity of which was debated.

The state court of appeals had rejected claims that trial counsel was ineffective for failing to challenge both the petitioner’s competence to stand trial as well as for failing to raise a defense of diminished capacity or insanity, and that appellate counsel was ineffective for failing to raise these issues on appeal.  The district court found these rulings were not based on an unreasonable application of federal law and not based on an unreasonable determination of the facts.

Trial counsel had argued that the petitioner was not legally competent to stand trial on account of his amnesia with respect to the three days surrounding the date of the crime.  Although the amnesia was genuine, under Iowa law amnesia alone is not sufficient to demonstrate an inability to communicate with counsel.  Accordingly, the state trial court had rejected the petitioner’s claim of incompetence.  But the petitioner claimed trial counsel should also have argued that the petitioner’s delusions that his family was still alive should have made him incompetent.  But the psychiatrists testified at the competency hearing that these delusions were fading with time.  Accordingly, trial counsel did not unreasonably curtail investigations into these delusions, and thus did not perform deficiently.  Furthermore, the state appellate court had ruled that arguing this aspect of the competence claim would have been futile because the mental health experts that evaluated him did not regard the delusions as significantly impinging on the competence inquiry.  Accordingly, the state courts did not unreasonably reject this IAC claim.

As to the claims related to the insanity and diminished capacity defenses, the state court’s rulings also were not unreasonable.  Trial counsel’s investigation led him to conclude that the factual evidence was sufficient to raise a reasonable doubt as to the petitioner’s guilt.  Counsel testified at the state post-conviction hearing that presenting both factual defenses and legal defenses — effectively arguing, “I didn’t do it, but if I did I was insane” — tended to undermine the strength of the factual defenses.  In the absence of any other evidence of the petitioner’s insanity, this strategic decision was reasonable.  Counsel was not, the court noted, obliged to search for a mental health expert who would present a favorable opinion at trial.  Accordingly, the state courts did not unreasonably reject this IAC claim.  Because the state courts did not unreasonably reject the trial-related IAC claims, they did not also unreasonably reject the appeal-related IAC claims.

Smulls v. Roper (CA8)

Smulls v. Roper, No. 05-2456 (CA8 en banc, capital case) — In the course of a robbery, Smulls shot the owners of a jewelery shop.  He was eventually convicted of first-degree murder and related crimes, and sentenced to death.  During voir dire at his trial on the murder charge, Smulls challenged under Batson v. Kentucky, 476 U.S. 79 (1986), the prosecution’s decision to exercise a peremptory strike to remove the only African-American juror from the venire.  As a result, Smulls was tried and convicted before an all-white jury.

The prosecutor explained that the juror in question had a particular demeanor — a “glare on her face, an aversion of her eyes, and an irritated answer to one of” the prosecutor’s voir dire questions.  The juror in question sorted mail at Monsanto, and the prosecutor had had “bad experiences” with “postal workers” as jurors in the past.  The prosecutor also pointed out that he struck a white juror with a “confrontational attitude.”  Smulls replied that these reasons were a pretext, and pointed to other reasons relating to other venirepersons.  The trial court denied the Batson challenge.

The Missouri Supreme Court upheld the trial court’s denial of the Batson challenge on direct appeal.  It later denied Smulls’s motions for post-conviction relief.  The federal district court denied habeas relief, and the Eighth Circuit certified the Batson claim for appeal.

Smulls first argued that the Missouri courts unreasonably applied the Batson jurisprudence by failing to make specific factual findings relating to the validity of the prosecutor’s race-neutral explanations of the strike.  Citing Carey v. Musladin, 127 S. Ct. 649 (2006), the court rejected this argument because no clearly established federal law requiring state courts to make findings at each step of the Batson analysis.  Even if the analysis in Snyder v. Louisiana were relevant, Snyder was not clearly established law at Smulls’s trial, and cannot provide a basis for relief.  In any event, the Court’s death-qualification jurisprudence (the Witherspoon-Witt line of cases) did not require factual findings at each step; it is enough for the judge to find the juror qualified under Witherspoon or not qualified, and the same is true in the Batson context.

Moreover, the factual finding denying the Batson challenge was entitled to a presumption of correctness under § 2254(e)(1).  The presumption of correctness, reasoned the Eighth Circuit, does not allow a federal court to question the adequacy of the evidence before the trial court.

The Missouri Supreme Court did not reach a result contrary to Batson when it upheld the trial court’s denial of Smulls’s Batson claim.  At the third step, the defendant must show by a preponderance of the evidence that the prosecutor’s proffered reasons are pretextual.  The Missouri Supreme Court concluded that the trial court did not clearly err in doing so.  Thus, it was not necessary to fault the state courts for requiring Smulls to prove the race of each veniremember, as long as the ultimate ruling on the Batson challenge was not contrary to clearly established federal law.

Smulls also argued the rejection of his Batson challenge was based on an unreasonable determination of the facts.  The Missouri Supreme Court had ruled that the prosecutor’s reasons were “the type typically found to be race neutral” and were supported by the reasons he gave regarding a white veniremember.  These findings were entitled to the presumption of correctness, even though they were made by an appellate court.  The mere fact that the prosecutor used a peremptory challenge to strike the only African-American juror, in light of the whole record, did not rebut the presumption of correctness.  Accordingly, the state courts’ denial of Smulls’s Batson claim was not based on an unreasonable determination of the facts.

Query whether this decision squares with the Ninth Circuit’s decision in Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004), which explained how to reconcile the presumption of correctness with the limitation on relief set forth in § 2254(d)(2) (the “unreasonable determination of the facts” limitation).  Taylor held that the presumption of correctness attaches only after the state court’s factual determinations survive an intrinsic review; the “unreasonable determination of the facts” prong of AEDPA demanded an extrinsic review of all the facts in the case, not simply those available to the state courts.