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Thomas v. Norris

August 15, 2007

LAJOYYA ASHLEY THOMAS PETITIONER
v.
LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION RESPONDENT



MEMORANDUM OPINION AND ORDER

Lajoyya Ashley Thomas, formerly an Arkansas Department of Correction (ADC) inmate, brings this 28 U.S.C. § 2254 petition for writ of habeas corpus, along with a supporting brief (docket entries #1, #2). Respondent concedes (docket entry #11) that Petitioner was in his custody at the time of filing*fn1 and has exhausted all nonfutile state remedies. See 28 U.S.C. § 2254(a-c). For the following reasons, the petition will be dismissed in its entirety.*fn2

I. Background

Following four bench trials in April 2000 in the Circuit Court of Pulaski County, Arkansas, Petitioner was convicted of six counts of second degree forgery, one count of first degree forgery, one count of fraudulent use of a credit card, and one count of financial identity fraud. He was sentenced to concurrent terms of imprisonment, with the longest term being 300 months. (R. 21-26, 38-40, 52-53, 69-73.)*fn3 His cases were consolidated for a direct appeal to the Arkansas Court of Appeals, which affirmed. Thomas v. State, No. CACR 00-1042, 2002 WL 54821 (Ark. Ct. App. Jan. 16, 2002) (Resp't Ex. 2)*fn4 (Thomas I).

Petitioner then filed in the state circuit court a timely petition for post-conviction relief pursuant to Ark. R. Crim. P. 37. The petition was denied, and Petitioner appealed. The Arkansas Supreme Court advised Petitioner that it was unable to reach the merits of Petitioner's claims because he had failed to comply with the court's abstracting rules, giving him an opportunity to file a substituted abstract. Thomas v. State, No. CR 02-1347, 2003 WL 22311343 (Ark. Sup. Ct. Oct. 9, 2003) (Resp't Ex. 3)*fn5 (Thomas II). When Petitioner failed to comply within the prescribed time, the appeal was dismissed. Thomas v. State, No. CR 02-1347 (Ark. Sup. Ct. Feb. 5, 2004) (Resp't Ex. 3).

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

1. In all of his cases except Case No. CR 99-3351, the evidence at trial was insufficient to support conviction;

2. In Case No. CR 99-3351, his trial counsel was ineffective for failing to subject the prosecution's case to meaningful adversarial testing; and

3. In the remaining cases, his counsel was ineffective for failing to raise sufficiency of the evidence at trial and on direct appeal.

Respondent asserts that: (1) some of Petitioner's issues regarding sufficiency of the evidence are procedurally defaulted because he failed to properly raise them as points for reversal in his direct appeal; (2) the evidence supporting Petitioner's convictions was constitutionally sufficient; (3) all ineffective-assistance claims are procedurally defaulted because Petitioner failed to comply with the Arkansas Supreme Court's abstracting rules in his state post-conviction appeal; and (4) alternatively, all ineffective-assistance claims are without merit. Although notified of his opportunity to reply to these arguments (docket entry #12), Petitioner has not done so and the time for replying as expired.

II. Sufficiency of Evidence

Petitioner challenges the sufficiency of the evidence forming the basis for his convictions in three of his criminal cases: No. CR 99-2158, No. CR 99-2255, and No. CR 00-535. Noting that the procedural default issues regarding these claims are "problematic," Respondent's argument instead focuses on the merits. This Court will do the same. See Trussell v. Bowersox, 447 F.3d 588, 590-91 (8th Cir.) cert. denied, 127 S.Ct. 583 (2006) (because procedural default does not constitute jurisdictional bar to federal habeas review, court may proceed to the merits in the interest of judicial economy); Khaalid v. Bowersox, 259 F.3d 975, 978 (8th Cir. 2001) (declining to address "the complexities of the procedural bar issue" where the claim is more easily resolved on the merits).

A. Law

The Due Process Clause of the Fourteenth Amendment guarantees that "no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof -- defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Jackson v. Virginia, 443 U.S. 307, 316 (1979). The evidence presented at a trial is constitutionally insufficient to convict only if "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324. In making this determination, all of the trial evidence is to be viewed in the light most favorable to the state. Id. at 319. A reviewing court must presume that the trier of fact resolved all conflicting inferences in the record in favor of the state and must defer to that resolution. Id. at 326. It is the responsibility of the trier of fact to reconcile conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. at 319. A federal habeas court is not permitted to conduct its own inquiry into witness credibility. Wright v. West, 505 U.S. 277, 296-97 (1992); Robinson v. LaFleur, 225 F.3d 950, 954 (8th Cir. 2000) ("that is a task reserved to the jury").

The substantive elements of state crimes are defined by state law. Jackson, 443 U.S. at 324 n.16. Therefore, the Court will examine each of Petitioner's contested convictions in light of the applicable state statutory requirements and the principles enunciated in Jackson.

B. No. CR 99-2158: Second Degree Forgery (Frederica Pharmacy and Marketplace Pharmacy)

Jennifer Armstrong testified that, sometime in February 1999, her purse was stolen from a closet in her office at Central Arkansas Radiation Therapy Institute. Her checkbook, driver's license, and social security card were among the items in her purse at the time it was taken, and she immediately reported the theft to her bank and to the police. She also testified that, during this time, Petitioner was a member of the cleaning crew at her workplace and that he had access to the closet where she kept her purse. (R. 99-104.)*fn6

Walter Lyn Fruchey, a pharmacist at Frederica Pharmacy in Little Rock, testified that, on February 19, 1999, he filled a prescription written by Dr. Scott Dineheart for Jennifer Armstrong for Hydroquinone cream. Mr. Fruchey identified Petitioner as the person who brought the prescription to the pharmacy to be filled and took it to the cash register to pay for it, testifying that he was dressed as a female. The pharmacy received a check written on the account of Jennifer Armstrong for an amount sufficient to cover the cost of the prescription. The check was returned from the bank as stolen. (R. 119-29.)

Ray Turnage testified that he worked at Marketplace Pharmacy in Little Rock where, in February 1999, Petitioner brought in a prescription for Hydroquinone, requesting that it be filled, then returned the next day to pick up the medication. The date of the prescription was February 18, 1999, and it was purportedly written by Dr. Dineheart for Jennifer Armstrong. Mr. Turnage testified that Petitioner, dressed as a woman, gave him a check written in the name of Jennifer Armstrong. (R. 129-37.)

Dr. Scott Dineheart, a dermatologist in Little Rock, testified that he did not have a patient by the name of Jennifer Armstrong and that he had never written a prescription for Ms. Armstrong for Hydroquinone. He testified that the two prescriptions at issue were written on prescription pads from his office, but that he did not write them and that the handwriting and signatures on them were not his. (R. 114-16.)

Ms. Armstrong testified that the checks to Frederica Pharmacy and Marketplace Pharmacy were among those she had reported stolen, that she did not write either of the checks, that she had never seen Dr. Dineheart, and that she had never received a prescription for Hydroquinone. (R. 118-19.)

A financial crime detective with the Little Rock Police Department testified that she investigated the two checks at issue, determining that they were stolen from Ms. Armstrong's workplace and had been returned from the bank as forged. After learning that Petitioner was a possible suspect, the detective prepared a photospread containing Petitioner's photo. According to the detective, Mr. Fruchey positively identified Petitioner from the photospread as the person who presented the prescription to him at Frederica Pharmacy. However, Mr. Turnage, the pharmacist at Marketplace Pharmacy, selected the photo of a person other than Petitioner as a "lookalike," but told police he was not sure.

(R. 138-46.)

Based on this testimony, the trial court found Petitioner guilty of four counts of second degree forgery, two counts for the prescriptions and ...


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