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Camp v. Kelley

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

January 19, 2017

WYOUMAN DAVID CAMP PETITIONER
v.
WENDY KELLEY, Director of the Arkansas Department of Correction RESPONDENT

          PROPOSED FINDINGS AND RECOMMENDATION INSTRUCTIONS

         The following recommended disposition has been sent to United States District Court Judge D. P. Marshall 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.

         DISPOSITION

         Petitioner Wyouman David Camp (“Camp”) seeks a writ of habeas corpus pursuant to 28 U.S.C. §2254. He is currently in the custody of the Arkansas Department of Correction (ADC) following a 2009 jury trial in the Circuit Court of Howard County in which he was convicted of murder in the first degree. The murder victim was Camp's wife, and the testimony at trial established that Camp hired Harry Surber (“Surber”) to kill her. Camp was sentenced to life imprisonment. On direct appeal, Camp advanced two claims for relief: (1) the testimony given by accomplices was not sufficiently corroborated as mandated by Arkansas law; and (2) the trial court erred in allowing testimony that Camp attempted to hire a fellow inmate to kill his sister, who was one of his accomplices. The direct appeal to the Supreme Court of Arkansas was unsuccessful. Camp v. State, 2011 Ark. 155.

         In July 2011, Camp filed a state Rule 37 petition for postconviction relief, alleging eight claims for relief. Docket entry 10-8, pages 4-13. One of those claims was ineffective assistance of counsel in connection with Camp's rejection of a plea bargain. The circuit court conducted a hearing in March 2013, at which Camp was represented by counsel. Docket entry 10-8, pages 107-177. The trial court denied postconviction relief in November 2013. Docket entry 10-8, pages 94-104. The Supreme Court of Arkansas affirmed the trial court in March 2015.

         In another action, filed while Camp's Rule 37 petition was pending before the trial court, Camp requested that the Supreme Court of Arkansas reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. Docket entry 10-12. Camp alleged Brady and Giglio violations related to testimony about a deal struck between accomplice Surber and the prosecution. At trial, Surber testified that he told law enforcement he would give them information about the murder if the prosecution would not seek the death penalty against him. He further testified he was told the prosecutor could make no promises, but would do everything he could in this regard. Camp argued that Surber's testimony misled the jury into believing Surber would receive a sentence of life imprisonment when, in fact, Surber received a 40 year term of imprisonment when he later was sentenced. Camp argued that the alleged false representation “artificially enhanced the credibility of Surber's testimony.” Id., page 1. The Supreme Court of Arkansas denied Camp's request, specifically finding that even if Surber had a deal with the prosecution other than what he described at trial, Camp failed to demonstrate a reasonable probability that the result of the trial would have been different had that deal been disclosed at trial. Camp v. State, 2012 Ark. 226.

         Camp, in his federal habeas corpus petition, claims:

(1) the Arkansas courts erred in refusing to vacate and reduce his sentence due to Camp's rejection of the plea offer resulting from ineffective assistance of counsel; and
(2) the Arkansas courts erred by refusing to vacate Camp's conviction and by refusing to permit him to pursue a writ of error coram nobis, despite clear evidence of a Brady and Giglio violation in the misrepresentation of Surber's deal with the prosecution.

         Camp acknowledges that both claims were advanced in state court and decided adversely to him. Claim 1 was pursued in his Rule 37 proceedings, and claim 2 was advanced in his petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.

         When the state court has ruled on the merits of a petitioner's claims, a writ of habeas corpus may not be granted unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court.” 28 U.S.C. § 2254(d)(1), (2). The United States Supreme Court offers guidance in interpreting the statute:

A state court decision will be “contrary to” our clearly established precedent if the state court either “applies a rule that contradicts the governing law set forth in our cases, ” or “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” A state court decision will be an “unreasonable application of” our clearly established precedent if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.”
. . . Distinguishing between an unreasonable and an incorrect application of federal law, we clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable.

Penry v. Johnson, 532 U.S. 782, 792-93 (citations omitted).

         Camp's First Claim: Camp contends his first claim is meritorious because the state courts unreasonably applied Strickland v. Washington, 466 U.S. 688 (1984), and other Supreme Court cases concerning ineffective assistance of counsel. Strickland and the other cited cases are unquestionably “clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). It is clear that effective counsel encompasses the performance of attorneys in plea negotiations and decisions. See, e.g., Hill v. Lockhart, 474 U.S. 52 (1985).

         An evidentiary hearing was conducted in the Rule 37 proceeding. Camp testified, but no testimony could be given by his trial attorney, who died shortly after the trial. The trial court denied ...


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