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Reed v. Norris

April 24, 2007

ANTHONY REED PETITIONER
v.
LARRY NORRIS, DIRECTOR OF THE ARKANSAS DEPARTMENT OF CORRECTION RESPONDENT



MEMORANDUM OPINION AND ORDER

STATE COURT PROCEEDINGS

The record reflects that in November of 2000, petitioner Anthony Reed ("Reed") was convicted by a Jefferson County, Arkansas, Circuit Court jury of one count of aggravated robbery, one count of theft of property, and two counts of second degree battery for his conduct in two separate incidents on the same night in July of 1999. See Reed v. State, 2002 WL 273655 (Ark.App. 2002).*fn1 He appealed the judgment of conviction to the Arkansas Court of Appeals and maintained that there was insufficient evidence to support his convictions of aggravated robbery and theft of property. Despite his assertion of error, the state Court of Appeals affirmed the judgment of conviction. See Id.

In April of 2002, Reed filed a trial court petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37. In that submission, he challenged the representation afforded by his trial attorney. The trial judge conducted a hearing on the petition and denied it in September of 2003. Reed appealed the denial of his petition to the state Supreme Court. When he failed to file a "complying brief as required by [an order of the state Supreme Court]," his appeal was dismissed and the denial of his petition was affirmed on account of his "noncompliance in accordance with Ark. Sup.Ct. R. 4-2(b)(3)." See Reed v. State, 2006 WL 137232 at 2 (Ark.S.Ct. 2006).

FEDERAL COURT PROCEEDINGS

In November of 2006, Reed filed the pending pro se petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. In the submission, he advanced the following claims: (1) the trial judge erred in using the same jury to decide criminal offenses arising from two separate incidents; (2) Reed's trial attorney was ineffective when he informed potential jurors of Reed's prior felony convictions; (3) the evidence to support Reed's convictions of aggravated robbery and theft of property was insufficient; and (4) the State failed to disclose exculpatory evidence, and counsel was ineffective when he failed to obtain and offer the evidence. In connection with Reed's third claim, i.e. his challenge to the sufficiency of the evidence supporting his convictions of aggravated robbery and theft of property, he submitted a copy of an affidavit signed by one of the victims, John E. Price ("Price"). See Document 2 at 11. In the affidavit, Price appears to recant the testimony he gave at Reed's trial.

In December of 2006, respondent Larry Norris ("Norris") submitted a response to Reed's petition. Norris first maintained that claims one, two, and four of the petition should be denied because they are procedurally barred from federal court review. With regard to claim three, he maintained that it was correctly decided by the state Court of Appeals. He alternatively maintained that Reed cannot show that the decision of the state Court of Appeals on claim three was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. Norris additionally maintained that Reed cannot show that the decision of the state Court of Appeals on that claim was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. With regard to Price's alleged recantation, Norris maintained that it should be disregarded.*fn2

The Court briefly examined the record in this proceeding and determined that Reed should be notified that Norris was seeking the dismissal of the petition because, inter alia, three of the claims contained in it are allegedly procedurally barred from federal court review. The Court so notified Reed and invited him to submit a reply in which he explained why his petition should not be dismissed.

Reed accepted the invitation of the Court by submitting a reply. In that submission, he appeared to acknowledge that he had procedurally defaulted claims one, two, and four. He nevertheless maintained that the claims should be considered on the merits because he is not an attorney and because he is actually innocent of the offenses; he specifically maintained the following:

Petitioner apologizes for being procedurally barred ... and the reason Petitioner asks this Honorable Court to [hear] these violations is because a constitutional violation occurred that convicted a person who was actually innocent of the crime. Petitioner also was given a chance to comply with Ark. Sup. Ct. R. 4-2. Petitioner also wants the Court to notice that Petitioner's legal skills fall below an attorney's. Petitioner humbly asked the Arkansas Supreme Court to hear his grounds. Petitioner just couldn't meet the compliance rule.

See Document 10 at 2. He also maintained that claim three should be considered, and relief granted accordingly, because the decision of the state Court of Appeals was based on an unreasonable determination of the facts in light of the evidence presented.

The Court examined the record in this proceeding and made the following findings and conclusions regarding claims one, two, and four. First, Reed never raised claims one and four in state court and thus procedurally defaulted the claims. Second, although he raised claim two in his trial court petition for post-conviction relief, he failed to obtain an appellate court ruling on the claim. The Court therefore concluded that he had procedurally defaulted that claim as well.

Having found that Reed procedurally defaulted claims one, two, and four, the question was whether he could show cause for the procedural defaults. Although he maintained that his legal skills are inadequate, it was clear that a prisoner's pro se status and limited education do not constitute sufficient cause to excuse a procedural default. Thus, the Court found that his assertion did not excuse his procedural defaults.

Reed additionally maintained that he is actually innocent of the offenses and offered Price's affidavit in support of that assertion. The Court again examined the record in this proceeding and assumed without deciding that in light of the representations contained in Price's affidavit, Reed had satisfied the "actual innocence" standard of Schlup v. Delo, 513 U.S. 298 (1995).*fn3 Specifically, the Court assumed without deciding that on the basis of Price's representations, it is more likely than not that no reasonable juror would have found Reed guilty of aggravated robbery and theft of property beyond a reasonable doubt. Given the foregoing assumption, he was permitted to pass through the Schlup v. Delo "gateway." The Court ordered Norris to submit an amended response in which he addressed claims one, two, and four on the merits and, if desired, to supplement his response to claim three.

Norris thereafter submitted an amended response to Reed's petition. Norris correctly noted at the outset of his response that "[the] Court did not explicitly rule on whether [Reed] had made [an actual innocence] showing ..." See Document 13 at 2. Norris again maintained that claims one, two, and four were procedurally barred from federal court review because Reed had procedurally defaulted the claims and could show neither cause for the procedural defaults nor actual innocence. Norris alternatively addressed claims one, two, and four on the merits. In sum, he maintained that Reed was not entitled to relief on those claims.

The Court has now had an opportunity to thoroughly examine the parties' submissions. For the reasons that follow, the Court finds that Reed's petition should be denied ...


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