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Williams v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

June 13, 2016

MATTHEW WILLIAMS, JR., Petitioner,
v.
WENDY KELLEY, Director of the Arkansas Department of Correction, Respondent.

          FINDINGS AND RECOMMENDATION

          PATRICIA S. HARRIS, Magistrate Judge.

         INSTRUCTIONS

         The following proposed Findings and Recommendation have been sent to United States District Judge James M. Moody, Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         FINDINGS AND RECOMMENDATION

         I. STATE PROCEEDINGS. The record reflects that in September of 2008, counterfeit checks were passed at convenient stores in Pike County, Arkansas. See Document 23, Exhibit A at CM/ECF 15. The checks were drawn on a general fund maintained by the City of Nashville, Arkansas. See Id . Local law enforcement authorities conducted an investigation into the passing of the checks, and they eventually identified petitioner Matthew Williams, Jr., ("Williams") as one of the individuals passing one or more of the checks. See Id.

         In November of 2008, Williams was charged in Pike County, Arkansas, Circuit Court with forgery in the first degree in violation of Ark. Code Ann. 5-37-201. See Document 23, Exhibit A at CM/ECF 13-14. Williams initially retained an attorney, but counsel withdrew when he was not paid for his services. See Id. at CM/ECF 8, 19, 32-34, 115-117. When Williams was unable to retain another attorney, the state trial court judge appointed LaJeana Jones ("Jones") to represent Williams. See Id. at CM/ECF 119-121. Jones represented Williams until the day of the trial, at which time Williams discharged Jones, and Williams began representing himself. See Id. at CM/ECF 171-183. The state trial court judge permitted Williams to represent himself only after ensuring that he knew the consequences of choosing to proceed without counsel. See Id . The state trial court judge did, though, appoint Jones to serve as stand-by counsel for Williams. See Id. at CM/ECF 183.

         Williams was tried in December of 2012. See Document 23, Exhibit A at CM/ECF 10. While the jury was deliberating his guilt, he absconded. See Id. at CM/ECF 371-373. After the jury convicted Williams of forgery in the first degree, the state trial court judge re-appointed Jones to represent Williams during the punishment phase of the trial. See Id. at CM/ECF 373. The jury heard evidence relevant to Williams' punishment, including evidence that he had a number of prior felony convictions. See Id. at CM/ECF 376-379. The jury sentenced him as an habitual offender to a term of forty years in the custody of respondent Wendy Kelley ("Kelley"). See Id. at CM/ECF 385-387.[1] The state trial court judge did not impose sentence at that time but instead waited until Williams was apprehended. See Id. at CM/ECF 387-388. Williams was eventually apprehended and appeared before the state trial court judge in April of 2013 for sentencing. See Id. at CM/ECF 391-398. The state trial court judge imposed the sentence recommended by the jury, and Williams was placed in Kelley's custody. See Id.

         Williams appealed his conviction. During the course of the appeal, Jones was relieved as Williams' attorney of record, and Jeff Weber ("Weber") was appointed to represent Williams. The Arkansas Court of Appeals found no reversible error and affirmed Williams' conviction. See Williams v. State, 2014 Ark.App. 454, ___ S.W.3d ___, 2014 WL 4459116 (2014).

         Williams then filed a state trial court petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37 ("Rule 37 petition"). The petition was denied, see Document 23, Exhibit D at CM/ECF 37-40, and he appealed. The Arkansas Supreme Court found no grounds for disturbing Williams' conviction, and the court affirmed the denial of his petition. See Williams v. State, 2015 Ark. 466, 476 S.W.3d 800 (2015).

         II. FEDERAL PROCEEDINGS. Williams began this case by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. In the petition, he raised the following claims: 1) Jones failed to challenge an erroneous jury instruction, 2) Jones failed to interview any witnesses, 3) Jones failed to challenge the admission of certified copies of the counterfeit checks, 4) Weber failed to challenge the sufficiency of the evidence, and 5) Weber failed to challenge the admission of certified copies of the checks.[2] Williams later amended his petition and raised the following claims: A) Jones failed to communicate the terms of a plea bargain, B) Williams was denied counsel at trial, C) he was denied counsel during the Rule 37 hearing, and D) he was denied a fair and impartial jury.

         Kelley filed a lengthy response to the petition. In the response, she maintained that the petition should be dismissed with prejudice because the claims contained in the petition were reasonably adjudicated by the state courts of Arkansas, are procedurally barred from federal court review, are without merit, or are otherwise unavailing.

         Williams filed a reply to the response. Williams maintained that the adjudication made of his claims by the state courts of Arkansas was entitled to no deference. With respect to his claims not adjudicated by the state courts of Arkansas, he maintained that the claims are not procedurally barred from federal court review but have merit.

         III. INEFFECTIVE OF COUNSEL. Jones represented Williams up to the day of trial. Williams represented himself at trial, but Jones was re-appointed to represent Williams during the punishment phase. Weber was then appointed to represent Williams on direct appeal. As Williams' first six claims, he challenges the representation they afforded him.

         Some of Williams' six claims were considered by the Arkansas Supreme Court. To the extent they were, they are governed by 28 U.S.C. 2254(d), which requires a two-part inquiry. It requires an inquiry into whether the court's adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law; and whether the adjudication resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented.

         All of Williams' six claims are governed by Strickland v. Washington, 466 U.S. 668 (1984), which requires its own two-part showing. He must show that counsel's performance fell below an objective standard of reasonableness, and he must show prejudice, i.e., a reasonable probability that, but for counsel's errors, the result of the trial would have been different. See White v. Dingle, 757 F.3d 750 (8th Cir. 2014). Taken together with 28 U.S.C. 2254(d), Strickland v. Washington establishes a doubly deferential standard of review. See Williams v. Roper, 695 F.3d 825 (8th Cir. 2012).

         A. Jones' failure to challenge an erroneous jury instruction. At the close of the evidence, the jurors were read an instruction allegedly conforming to Arkansas Model Jury Instruction (Criminal) ("AMCI") 3702. The instruction provided, in part, that "the written instrument so drawn, made, completed, altered, counterfeited, possessed, or uttered was a check, an instrument issued or appears to be issued by a government or government entity." See Document 23, Exhibit A at CM/ECF 66, 356. AMCI 3702, though, does not contain the phrase "appears to be issued." Williams maintains that Jones erred when she failed to challenge the instruction on that ground.

         Williams raised his claim in his Rule 37 petition. The state Supreme Court rejected the claim, finding the following:

Williams first argues that the trial court erred by not granting relief on his claim that his pretrial counsel [i.e., Jones] was ineffective for not contesting an erroneous jury instruction. He contends counsel should have objected on the basis that the jury instruction defining the offense of forgery did not mirror the exact language in the forgery statute in that the instruction stated that the check was a written instrument that was issued or "appears to be issued" by the government or a government entity, but the statute does not contain the words "appears to be issued."
While Williams is correct that the forgery statute... does not contain the words in question, we cannot say that the trial court erred in denying postconviction relief on the issue under the Strickland standard. First, counsel testified at the Rule 37.1 hearing that she attempted to review the jury instructions with Williams, but he informed her that he could read and did not need her help. At trial, when Williams was representing himself, he did not object when the jury instructions were read to the jury. The right of self-representation carries the responsibility for one's own mistakes, and a defendant who elects to represent himself cannot thereafter complain that the quality of his self-representation amounted to a denial of effective assistance of counsel....
Moreover, even if pretrial counsel failed to point out to Williams the difference in the wording between the statute and the jury instruction or if counsel, acting as stand-by counsel, could have suggested that Williams object to the jury instruction, Williams did not show that the difference in the wording was sufficient to change the outcome of the trial. Without a showing of a reasonable probability that the fact-finder's decision would have been different absent an error by counsel, Williams did not establish that he was prejudiced by any error by his pretrial counsel....

         See Williams v. State, 476 S.W.3d at 804.

         The state Supreme Court's adjudication of Williams' claim did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. The court applied clearly established federal law as announced in Strickland v. Washington, and the ...


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