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Hart v. Norris

August 31, 2005

EMANUEL HART ADC #111502 PETITIONER
v.
LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION RESPONDENT



MEMORANDUM OPINION AND ORDER

Emanuel Hart, an Arkansas Department of Correction inmate, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry #1), and Respondent has filed a response (docket entry #6). For the reasons that follow, the petition must be dismissed.*fn1

Background

Following a jury trial in September 1997 in the Circuit Court of Pulaski County, Arkansas, Petitioner was convicted of first degree murder and two counts of committing a terroristic act. He was sentenced to a total of thirty-five years of imprisonment. (R. 24-29.)*fn2 In a direct appeal, he raised one claim: that the trial court erred in allowing Derrick Smith to testify that Petitioner shot at a different vehicle shortly before shooting at the victims' vehicle. (Resp't Ex. A.) Finding no error, the Arkansas Court of Appeals affirmed. Hart v. State, 987 S.W.2d 759 (Ark. Ct. App. 1999) (Hart I).

Petitioner then filed in the state circuit court a timely petition for post-conviction relief pursuant to Ark. R. Crim. P. 37, alleging that: (1) his trial counsel was ineffective for failing to properly prepare for trial or investigate the facts of the case and the case law; (2) his trial counsel was ineffective for failing to call Kenneth McArthur as a witness; (3) his trial counsel was ineffective for failing to object to the trial court's refusal to accept a negotiated plea the morning of trial; (4) his trial counsel was ineffective for failing to request a limiting instruction with regard to the testimony of Mr. Stewart; and (5) his judgment and commitment order erroneously stated the sentence actually imposed. Following a hearing, the circuit court found that Petitioner was entitled to entry of an amended judgment and commitment order to reflect that his sentences were to be served concurrently instead of consecutively, resulting in an imprisonment term of twenty-five years. The other claims were denied as without merit. State v. Hart, No. CR 96-2104 (Pulaski Co. Cir. Ct. Oct. 29, 1999) (Resp't Ex. B). The decision was affirmed on appeal. Hart v. State, No. CR 99-1408, 2001 WL 1081411 (Ark. Sup. Ct. Sept. 13, 2001) (Resp't Ex. C) (Hart II). There is no evidence or allegation that Petitioner sought any further relief in state court.

Petitioner now brings this federal habeas petition, advancing the following claims:

1. He was denied his right to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution when his trial counsel failed to object to the trial court's rejection of his guilty plea; and

2. The introduction of evidence of other crimes violated his rights to due process and a fair trial under the United States Constitution.

Respondent concedes that Petitioner is in his custody and has exhausted all nonfutile state remedies, see 28 U.S.C. § 2254(a) & (b), but asserts that this Court should defer to the state courts' adverse rulings on his two claims pursuant to § 2254(d). Petitioner has replied (docket entry #9).

Ground 1

First, Petitioner contends that his trial counsel was ineffective for failing to object to the trial court's refusal to consider and accept a negotiated plea of guilty on the day of trial. He says an objection could have been made on two grounds: that the refusal to accept the plea was an abuse of discretion, and that the trial court's basis for rejection constituted a prohibited local court rule.

Respondent contends that the Arkansas Supreme Court's resolution of the issue is entitled to deference under the standards of 28 U.S.C. § 2254(d).

In the interests of finality and federalism, a federal habeas court is constrained by statute to exercise only a "limited and deferential review of underlying state court decisions." Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003). Thus, where a state court has previously adjudicated a claim on the merits, a federal habeas court may grant habeas relief for the same claim in only three limited situations: where the state court adjudication (1) was "contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1); or (2) "involved an unreasonable application" of clearly established federal law, id.; or (3) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2).

A state court decision is "contrary to" federal law under § 2254(d)(1) if it applies a rule that contradicts the controlling Supreme Court authority or if it applies the controlling authority to a case involving facts "materially indistinguishable" from those in a Supreme Court case, but nonetheless reaches a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court's decision involves an "unreasonable application" of federal law under § 2254(d)(1) if it "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The habeas court must "ask whether the state court's application of clearly established federal law was objectively unreasonable," and a state adjudication may not be found unreasonable "simply because [the federal habeas] court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 409, 411.

Pursuant to well-established United States Supreme Court law, criminal defendants have a Sixth Amendment right to "reasonably effective" legal assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant claiming ineffective assistance of counsel must show (1) that counsel's representation "fell below an objective standard of reasonableness" and (2) that counsel's deficient performance prejudiced the defendant. Id. at 687-88. The prejudice element need not be considered if the performance element has not been satisfied, and vice versa. Id. at 697. An attorney's performance is deficient only when it is "outside the wide range of professionally competent assistance," and the defendant must overcome a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. The defendant is prejudiced by the inferior performance if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Id. at 695.

In rejecting Petitioner's claim, the Arkansas Supreme Court cited Strickland and state court decisions, setting forth legal principles consistent with the above-stated law.

The court then stated:

Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Thomas [v. State], 954 S.W.2d 255, 258 [(Ark. 1997)] (citing Huls v. State, 785 S.W.2d 467 ([Ark.] 1990)). In making a determination on a claim of ineffectiveness, we consider the totality of the evidence before the factfinder, and we will not reverse the denial of post-conviction relief unless the lower court's findings are clearly against the preponderance of the evidence. Noel [v. State], 26 S.W.3d [123,] 125 [(Ark. 2000)].

Hart II, supra at *1 (parallel citations omitted). This, too, is consistent with the principles enunciated in Strickland. See Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (it is not necessary for the state court to cite, or even be aware of, applicable United States Supreme Court opinions, as long as "neither the reasoning nor the result of the state-court decision contradicts them").

The Arkansas Supreme Court then applied the stated law regarding ineffective-assistance claims as follows:

A defendant has no right to unilaterally waive a jury trial. State v. Singleton, 13 S.W.3d 584, 587 ([Ark.] 2000). As we have explained, under Ark. R. Crim. P. 31.1, criminal cases which require a trial by jury must be so tried unless waived by the defendant, assented to by the prosecutor, and approved by the court. State v. Vasquez-Aerreola, 940 S.W.2d 451, 455 ([Ark.] 1997) (quoting Fretwell v. State, 708 S.W.2d 630 ([Ark.] 1986)). The first two requirements are mandatory before the court has any discretion in the matter. Id. The trial court, however, decides whether it will accept the defendant's guilty plea in accordance with Ark. R. Crim. P. 24.4 to 24.6. Williams v. State, 930 S.W.2d 297, 302 ([Ark.] 1996). A defendant does not have an absolute right to plead guilty. Id.

Even if we were to hold that his trial counsel's performance was deficient, we find no basis for holding that appellant was prejudiced. See, e.g., Qualls v. State, 812 S.W.2d 681, 684 ([Ark.]1991). The trial court possessed the discretion to refuse to accept appellant's guilty plea for any reason or no reason at all. Thus, even if an objection by appellant's counsel at the time provided a basis for reversible error on direct appeal, he has not shown the trial court would have accepted his plea if it was forced to reconsider the issue upon remand. Appellant's argument is nothing more than a contention that the result might possibly have been different. Jones v. State, 8 S.W.3d 482, 488-89 ([Ark.] 2000) (supplemental opinion denying rehearing). This is insufficient under Strickland. Id. The circuit court did not clearly err in denying appellant's petition.

Hart II, supra at *2 (parallel citations omitted).

Petitioner does not contend that the law applied by the Arkansas Supreme Court is contrary to Strickland or that the United States Supreme Court has ever addressed a case with facts that are materially indistinguishable from those involved here. He does, however, assert that the state court decision is an unreasonable application of Strickland's standard to the facts and that the decision is contrary to United States Supreme Court law in that it failed to mention or apply Santobello v. New York, 404 U.S. 257 (1971). In Santobello, the Supreme Court stated: "There is, of course, no absolute right to have a guilty plea accepted. A court may reject a plea in exercise of sound judicial discretion." Id. at 262 (citing Lynch v. Overholser, 369 U.S. 705, 719 (1962)). ...


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