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RODE v. LOCKHART

November 30, 1987

David Rode, Petitioner,
v.
A. L. Lockhart, Director, Arkansas Department of Correction, Respondent



The opinion of the court was delivered by: YOUNG

 H. David Young, United States Magistrate

 Petitioner was convicted of the first-degree murder of his wife and sentenced to life imprisonment after a jury trial in Faulkner County Circuit Court on February 3, 1981. This conviction was affirmed by the Supreme Court of Arkansas in Rode v. State, 274 Ark. 410, 625 S.W.2d 469 (1981). *fn1"

 Petitioner unsuccessfully gained the assistance of attorneys and others in filing a Rule 37 *fn2" collateral attack in state court. He was aware that this was his "next step" in challenging his conviction, but when he finally attempted to file a pro se petition, it was returned as being untimely. *fn3" Exhaustion is not an issue, but, because petitioner procedurally defaulted, in pressing his claims in state court, respondent asserts that he is procedurally barred from proceeding in federal court. See Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977).

 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 1241, 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, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986), and Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (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, 106 S. Ct. at 2666. 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, 106 S. Ct. at 2646; second, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, see id. at 2650; third, 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, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984); or fourth, if the litigant failed to receive the effective assistance of counsel. See Murray v. Carrier, 106 S. Ct. at 2646.

 In response to this Court's March 17, 1987, Order, petitioner filed a pleading aimed at demonstrating that he had cause for his procedural default. In sum, his explanation for procedurally defaulting in presenting his collateral attack to the state court was grounded in his status as a pro se litigant. This explanation was determined to be without merit, but, because the allegations of his habeas petition dealt with one of the apparent types of cause (ineffective assistance of counsel), an attorney was appointed to represent petitioner in anticipation of a hearing to be held. After the Court's May 5, 1987, Order acknowledging the possibility that counsel's ineffectiveness needed to be examined with regard to the Wainwright v. Sykes issue, the Eighth Circuit Court of Appeals handed down its decision in Leggins v. Lockhart, 822 F.2d 764 (8th Cir. 1987). In part, Leggins held that "a claim of ineffective assistance of counsel must be presented to the state court as an independent claim before it may be used to establish cause for [a] procedural default." Id. at 768, n.5. Of course, this, the petitioner failed to do herein because he procedurally defaulted in pressing any of his claims before the state court.

 There is no evidence of any external impediment which prevented him from raising his habeas issues in state court, and the issues he raises are not so novel that they were unavailable to him. Since he cannot rely upon the asserted ineffectiveness of his trial counsel as cause, id., is he barred from any federal review of his conviction? The clear answer from Murray v. Carrier is no. Our constitutional safeguards have always permitted review of a conviction wherein manifest injustice has resulted. As the Court points out in Murray, procedural default in state court will not bar federal habeas review of a conviction wherein the defendant can make a colorable showing of actual innocence. Murray v. Carrier, 106 S. Ct. at 2650. In this case, the petitioner is undoubtedly guilty of killing his wife, but, as the discussion infra will make clear, he, in all probability, is not guilty of the offense for which he stands convicted, namely, first-degree murder. It is the fact that a constitutional violation (ineffective assistance of counsel) probably resulted in the conviction of one who is actually innocent which provides the cause and prejudice to excuse petitioner's state procedural default.

 The facts of this case are particularly tragic. In August of 1980, petitioner, twenty-nine years of age, his wife, and their one-month-old baby were traveling in their vehicle from Michigan to Texas. They had been visiting relatives in Michigan and Kentucky and were returning to their home in Abilene, Texas, where petitioner was a college student and his wife was an Air Force nurse.

 
Shortly after midnight on August 19, 1980, [petitioner] drove to a service station in Conway and, in an emotional state, told a witness that ten minutes previously his wife and four-week-old child had been the victims of a hit and run accident. He stated that the accident occurred on the interstate highway while he was changing a tire on his car. His clothing had blood on it, the baby had blood over most of its body and his wife, who was slumped over in the front right seat of his car, was bloody. The police and ambulance personnel promptly answered calls and began their separate duties. The victim and the baby were taken by ambulance to the hospital where she was pronounced dead but the baby was found to be uninjured. [Petitioner] went with the police but could not find the accident scene. Additional police, in an extensive search, could not find any evidence of a hit-and-run accident on the highway.
 
Later, [petitioner] stated to another witness that the accident took place while he was getting a bottle for the baby and to a third witness he stated that it took place while he was getting diapers for the baby. The police then observed that the tire had not been changed and that the blood splatters in and on the car did not correspond with [petitioner's] version of the facts.
 
The attending physician at the hospital found that the injuries to the victim were consistent with a beating and were not consistent with a hit-and-run accident. At trial the State Medical Examiner testified that the victim sustained trauma to the head, chest, extremities, neck and voice box. She had bruises around the eyes and to the eyelids, a broken nose and bridge of the nose, a subdural hematoma, multiple abrasions on her neck and her adam's apple was crushed from side to side. He testified that the latter injury was a "classic picture of manual strangulation." The medical examiner observed damage to the dorsum of her hand which is consistent with a defense type of injury which occurs when a victim raises his or her hand for protection. The chief criminologist for the State Crime Laboratory testified that the clothing worn by the victim gave no evidence of having been in a hit-and-run accident. A Conway physician testified that [petitioner] had abrasions on his fingers and knuckles and there was a large bruise in the palm of his left hand. X-rays of the [petitioner's] left hand reflected a compression fracture at the base of the fifth metacarpal. The witness testified that the injuries to [petitioner] were caused by a force angularly pushing the bone backward, as would be caused by striking someone with a closed fist. These injuries would be consistent with beating someone with fists and slapping them with an open hand.

 Rode v. State, supra at 411-12.

 Because of the obvious inconsistencies in petitioner's statements and physical facts, and the absence of any other potential suspect, petitioner was taken into ...


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