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Thomas v. Kelley

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

September 26, 2016

EUGENE THOMAS, III ADC #149889, Petitioner,
WENDY KELLEY, Director, Arkansas Department of Correction, Respondent.

          Eugene Thomas, III, Plaintiff, Pro Se.

          Wendy Kelley, Defendant, represented by Rebecca Bailey Kane, Arkansas Attorney General's Office.


          J. THOMAS RAY, Magistrate Judge.


         The following Recommended Disposition ("Recommendation") has been sent to United States District Judge James 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.

         I. Background

         Pending before the Court is a pro se § 2254 Petition for a Writ of Habeas Corpus, along with a supporting Brief, filed by Petitioner, Eugene Thomas, III ("Thomas"), a prisoner in the Arkansas Department of Correction. Doc. 2 & 3. Respondent has filed a Response to the Petition, Doc. 9, and Thomas has filed a Reply, Doc. 11. Thus, the issues are fully joined and ripe for resolution.

         Before addressing the merits of this habeas action, the Court will review the relevant procedural history of Thomas's underlying state court conviction.

         In April 2011, a jury in Ashley County, Arkansas convicted Thomas of aggravated robbery and commercial burglary, and sentenced him to twenty years. Doc. 9-2 at 61-62.

         Thomas appealed his conviction to the Arkansas Court of Appeals where he argued, through counsel, [1] that the trial court erred by: (1) refusing to give a jury instruction on the lesser-included offense of attempt to commit aggravated robbery; (2) admitting evidence during sentencing of his participation in a prior robbery; and (3) denying his motion for mistrial based on the prosecutor's remark during closing argument.

         On September 12, 2012, the Arkansas Court of Appeals affirmed both convictions. Thomas v. State, 2012 Ark.App. 466, 422 S.W.3d 217, 218 (" Thomas I ").

         On November 30, 2012, Thomas filed a pro se petition for post-conviction relief under Ark. R. Crim. P. 37. Thomas raised numerous ineffective assistance of counsel claims arising from his attorney's actions and inactions at trial and on direct appeal. These claims included his attorney: (1) failing to formulate a trial strategy; (2) failing to adequately voir dire the jury; (3) making statements during opening and closing that stripped Thomas of the presumption of innocence in violation of his 5th Amendment rights; (4) failing to present arguments, on appeal, which adequately explained how the trial court had erred in refusing to grant a mistrial due to the prosecutor's statements during closing argument; (5) failing to obtain a jury instruction on the "corpus delicti rule"; (6) failing to appeal the trial court's denial of him motion for directed verdict based on the State's failure to prove his intent to commit theft, an essential element of aggravated robbery; and (7) failing to argue, during closing argument, that the State had failed to prove Thomas's intent. Rule 37 Tr. at 15-24. [2]

         On March 13, 2013, the Chicot County Circuit Court entered an Order denying Rule 37 relief. Rule 37 Tr. at 26-31. In this Order, the trial court noted that:

The evidence of guilty [sic] in this case is overwhelming. Not only did petitioner give a full confession to the police but there were two witnesses who testified to his action and activities while in the store.

Id . at 30.

         Thomas appealed the denial of Rule 37 relief to the Arkansas Supreme Court, which affirmed. Thomas v. State , Ark. Sup.Ct. No. CR-13-842 (June 19, 2014) (per curiam) ( Doc. 9-9 ) (" Thomas II ").[3]

         In his habeas Petition, Thomas makes the following claims: (1) the evidence at trial was insufficient to support his convictions;[4] (2) his appointed counsel was ineffective, at trial and on appeal, regarding the criminal intent and the "corpus delicti rule";[5] (3) his appointed counsel was ineffective for conceding his guilt at trial and for a lack of strategy;[6] (4) the prosecution committed misconduct during the sentencing phase and his appointed counsel was ineffective in appealing this issue;[7] and (5) other cumulative errors denied him his Sixth Amendment right to a fair and impartial trial.[8] Doc. 2.

         Respondent argues that Thomas's ineffective assistance claims, which were resolved adversely to him in state court, fail on the merits and that his insufficiency of the evidence claim is procedurally defaulted. Doc. 9.

         For the reasons discussed below, this Court recommends that Thomas's habeas Petition be denied, and the case dismissed, with prejudice.

         II. Analysis of Thomas's Habeas Claims[9]

         A. Insufficiency of Evidence Claim

         Thomas argues that the evidence was insufficient to support his convictions for aggravated robbery and commercial burglary.[10] See e.g., Doc. 2 at 5-7; Doc. 3 at 11-23; Doc. 11 at 12. As part of this argument, Thomas also contends that his attorney was ineffective for failing to appeal the trial court's denial of the directed verdict motions, based on the insufficiency of the evidence proving his "intent to commit theft, " one of the statutory requirements of the offense of aggravated robbery. See Ark. Code Ann. §§ 5-12-103 and 5-12-102. See Meadows v. State, 2012 Ark. 57, at 5, 386 S.W.3d 470, 474 ("we treat a motion for directed verdict as a challenge to the sufficiency of the evidence").

         Claims challenging the sufficiency of the trial evidence "face a high bar in federal habeas proceedings." Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012). "[I]t is the responsibility of the jury - not the [reviewing] court - to decide what conclusions should be drawn from evidence admitted at trial." Id. Evidence is sufficient to support a conviction whenever, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 2064 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Circumstantial evidence is "just as probative as any other type of evidence." Garrison v. Burt, 637 F.3d 849, 855 (8th Cir.2011); see Holland v. United States, 348 U.S. 121, 140 (1954) (circumstantial evidence is "intrinsically no different from testimonial evidence, " and "[i]f the jury is convinced beyond a reasonable doubt, we can require no more").

         Although the Arkansas Supreme Court refused to address the sufficiency of the evidence in rejecting Thomas's Rule 37 petition, it is clear the claim fails on the merits because the evidence at trial was constitutionally sufficient to support the jury's finding of guilt. The Arkansas Supreme Court summarized the facts of the case as follows:

At trial, Whitney Bridges and Nicky Waltman, employees of a Dollar General Store, testified that a man, wearing a black-and-white shirt and a red hat, came into the store shortly before closing time and walked to the back of the store toward a storeroom that was closed to the public. A second man was seated in a van outside. Waltman testified that she and Bridges walked through the store before locking the door but did not see the man. Bridges testified that after the door was locked, the man appeared from the back of the store with a black bandana over his face and a silver-and-black gun in his hand. The man and Bridges ran toward the front of the store where both fell down while Waltman unlocked the door and fled. The man pointed the gun at Bridges, and Bridges testified that he shouted at Waltman to stop. Waltman, who testified that the man yelled for her to stop or he would shoot, continued to run and called 911. After Waltman ran away, the man left the store, and Waltman heard the screech of tires as the van drove away. There was video surveillance equipment in operation at the store that recorded the incident, and a tape taken from those cameras was shown to the jury.
A police officer testified that, in the course of the investigation into the crime, he came upon a van that matched the description of the one seen at the store. Appellant [Thomas] was in the van with his brother, Dewayne Spearman. A search of Spearman's house in Mississippi produced a red hat, a black bandana, and a silver-and-black gun. A black-and-white shirt was seized in a search of appellant's mother's house. When informed of the items seized in the searches, appellant admitted in a recorded interview with police that it was his idea to rob the store and that he was the man who went inside with the gun while Spearman remained in the van. Appellant said in the interview that he became nervous and left without taking anything from the store.
It was appellant's defense that he made a mistake but admitted it promptly when apprehended, showed remorse for the crimes, willingly returned to Arkansas from Mississippi when arrested, and that the State did not prove all the elements of the offenses for which he was charged. After the State rested its case, counsel was allowed to question appellant out of the hearing of the jury and on the record as to whether he was in agreement with the strategy to demonstrate that his conduct did not constitute commercial burglary or aggravated robbery and whether he wished to testify in the guilt phase. Appellant said at the time that he did not agree with the State's position that he had aimed the gun at the woman lying on the floor with intent to use force but that he did not wish to testify. Counsel asked for a directed verdict as to both charges for failure to prove the elements of the offenses and also requested a jury instruction on the lesser-included offense of attempted aggravated robbery.

Thomas II, supra at 4-6.

         Such a sufficiency of the evidence challenge can only be considered in a federal habeas action if it rises to the level of violating the defendant's due process rights under the Fourteenth Amendment. The legal standard for analyzing such a due process claim is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). After carefully reviewing the record, this Court concludes that a rational jury could have found Thomas guilty of the charged offenses, especially since he confessed to police that: (1) "it was his idea to rob the store"; and (2) he entered the store with a gun. Trial T. at 164-166. Given those admissions, it is difficult to fathom how any rational jury could not have found Thomas guilty.

         Because he ultimately left the store, without actually taking any money or merchandise, Thomas argues that he cannot be deemed to have possessed the "intent to commit theft." This argument is misguided and finds no support in the law. After entering the store armed with a gun, Thomas may have changed his mind about following through with the crime or simply panicked and left the store without taking anything. These facts might be relevant at the sentencing stage but they in no way mitigate his "intent to commit theft, " as proven by his admission to police that, when he entered the store with a gun, he planned to rob it.

         Finally, as explained more fully below, Thomas's challenge to the sufficiency of the evidence is nothing more than a challenge to Arkansas's interpretation of the criminal intent requirement for aggravated robbery and the corpus delicti doctrine. Thomas may not transform a state law issue into a federal due process issue simply by asserting the evidence was constitutionally insufficient to support his conviction. See, e.g. Curtis v. Montgomery, 552 F.3d 578, 581-582 (7th Cir. 2009) (rejecting petitioner's argument that evidence was insufficient to sustain his conviction for aggravated stalking because petitioner was "really taking issue with the state court's interpretation of state law" which was an impermissible attempt "to use a petition for writ of habeas corpus to press his preferred interpretation of Illinois law.") The role of federal habeas courts is narrowly limited "to [a] review [of] state criminal proceedings for compliance with federal constitutional mandates." Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 403 (2001). See also Ford v. Norris, 364 F.3d 916, 919 (8th Cir. 2004) ("As the supreme judicial authority of the state, [the Arkansas Supreme Court] decides what state law is, an issue which cannot itself be reviewed in a federal habeas proceeding.").

         Thomas's challenge to the sufficiency of the evidence supporting his convictions for aggravated robbery and commercial burglary fail on the merits. Accordingly, the Court need not address Respondent's argument that Thomas procedurally defaulted his sufficiency of the evidence claim. See, e.g., Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (explaining that "[j]udicial economy might counsel" bypassing a procedural-default question if the merits "were easily resolvable against the habeas petitioner"); Trussell v. Bowersox, 447 F.3d 588 (8th Cir. 2006) (addressing merits, bypassing limitations and procedural default analysis, in the interest of judicial economy).

         B. Ineffective Assistance of Counsel Claims

         In Thomas's Rule 37 appeal, the Arkansas Supreme Court properly applied the ineffective-assistance standard established by the Court in Strickland v. Washington, 466 U.S. 668 (1984)[11] and concluded that Thomas failed to present any evidence that his counsel was ineffective either at trial or on appeal. Thomas II, supra at 2-3.

         Because some of Thomas's ineffective assistance of counsel claims overlap, the Court has organized and ...

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