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Stover v. Kelley

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

May 11, 2018

CALVIN JEROME STOVER 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 J. Leon Holmes. 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 Clerk within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         Calvin Jerome Stover (“Stover”) seeks habeas corpus relief. Stover originally filed a petition for relief pro se. Docket entry no. 2. Subsequently, attorney Craig Lambert entered an appearance in the case and submitted an amended petition for writ of habeas corpus. Docket entry nos. 11& 19. Respondent Wendy Kelley (“Kelley”) has filed a response to the amended petition. Docket entry no. 21.

         Stover challenges his 2013 convictions from Benton County Circuit Court on the charges of possession of a controlled substance, possession of a firearm by certain persons, and simultaneous possession of drugs and firearms. Stover was sentenced to a term of 40 years' imprisonment.[1] On direct appeal to the Arkansas Court of Appeals, Stover argued: (1) the evidence was insufficient to prove he possessed a usable amount of the controlled substance, methamphetamine; (2) the trial court erred in failing to grant a mistrial because jurors may have seen him wearing a jail identification bracelet prior to trial; and (3) the trial court erred by allowing the prosecution to introduce evidence in the trial sentencing phase showing that Stover had later been arrested, but not convicted, on other charges. The convictions were affirmed. Stover v. State, 2014 Ark.App. 393. The appellate Court specifically found the sufficiency of the evidence claim was not preserved for review because Stover argued at trial that he lacked intent to possess methamphetamine, a different argument than the claim on appeal that the prosecution failed to prove possession of a usable amount of methamphetamine. Thus, the Court of Appeals declined to address the sufficiency of the evidence argument. The Court of Appeals also declined to address Stover's argument that a mistrial should have been granted because jurors may have seen his jail identification bracelet. The appellate Court held the issue was not preserved because Stover never obtained a ruling on his motion for mistrial. Finally, the Court of Appeals found the trial court did not err in admitting the testimony of a subsequent similar crime during the trial's sentencing phase.

         Stover sought Rule 37 relief in September 2014, raising eight grounds: (1) the trial judge had a conflict of interest and should have recused because Stover had filed a grievance against the judge with the Judicial Discipline and Disability Commission; (2) both of the trial attorneys[2] representing Stover had conflicts of interest because Stover filed a complaint against one of the attorneys with the Public Defender Commission; (3) he received ineffective assistance of counsel when his attorneys failed to move for a directed verdict on the basis that the prosecution failed to prove he possessed a usable amount of methamphetamine; (4) he received ineffective assistance of counsel when his attorneys failed to object to the prosecution's amendment of the criminal charges to include a count of simultaneous possession of drugs and firearms; (5) he received ineffective assistance of counsel when his attorneys failed to challenge the underlying probable cause for an arrest warrant issued by Washington County; (6) he received ineffective assistance of counsel when his attorneys failed to obtain a ruling on the motion for mistrial after it was noted that Stover was wearing his jail identification bracelet while in the presence of the jury panel; and (7) he received ineffective assistance of counsel when his attorneys failed to investigate and interview witnesses. He requested a hearing, which was denied by the trial court.

         The trial court, in a January 2015 Order, denied the Rule 37 petition. Stover's appeal to the Supreme Court of Arkansas was unsuccessful. Stover v. State, 2016 Ark. 167. In this opinion the Court accurately identified Strickland v. Washington, 466 U.S. 668 (1984) as setting the standard for analyzing allegations of ineffective assistance of counsel. Thus, throughout this opinion the parties are in agreement that Strickland is the “clearly established Federal law, as determined by the Supreme Court” as that phrase is used in 28 U.S.C. § 2254(d)(1), (2).

         Stover's amended petition for writ of habeas corpus advances the following claims for relief:

         1. He is actually innocent of the crime of possession of a controlled substance and the crime of simultaneous possession of drugs and firearms;

         2. He received constitutionally ineffective assistance of counsel in the following ways:

a. Failure to properly challenge the sufficiency of the evidence at trial by claiming the prosecution failed to prove he possessed a usable amount of methamphetamine;
b. Failure to challenge his forty year sentence as excessive under the Eighth Amendment;
c. Trial counsel labored under a conflict of interest;
d. Failure to object to inadmissable and prejudicial testimony from Benton County Deputy Sheriff Charles Wells (“Wells”);
e. Failure to interview and call witnesses at trial;
f. Failure to object to the prosecution's amendment of the information, and prosecutorial vindictiveness in amending the information; and g. Failure to properly object, move for a mistrial, and preserve the objection when Stover was seen by the jury wearing a jail identification bracelet.

         Procedural Default

         Stover, in his amended petition, anticipated that Kelley would contend that some of his claims were procedurally barred for failure to adequately raise the claims in state court. As a result, he offers arguments why the procedural bar should be excused and the claims all considered on their merits. Stover cites Martinez v. Ryan, 566 U.S. 1 (2012) and subsequent cases to overcome the procedural lapse in state court. Stover was correct in anticipating Kelley's response, as she cites claims 2(b), (d), and (f) as procedurally ba rred, and discusses the import and application of Martinez.

         We are guided by the following language of the Eighth Circuit Court of Appeals:

In cases such as this, it might well be easier and more efficient to reach the merits than to go through the studied process required by the procedural default doctrine. Recent commentary points up the problems with the cause and prejudice standard:
[T]he decision tree for habeas review of defaulted claims is intricate and costly. . . . In essence, Sykes and Strickland require habeas lawyers and federal judges and magistrates to work through the equivalent of a law school exam every time a defendant tries to escape procedural default.

McKinnon v. Lockhart, 921 F.2d 830, 833 n.7 (8th Cir. 1990) (quoting Jeffries & Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Corpus, 57 U.Chi.L.Rev. 679, 690 (1990)). See also Williams v. Norris, 612 F.3d 941, 953 (8th Cir. 2010). In this instance, we find it wiser and a better use of judicial resources to forego the procedural default analysis and address the merits of Stover's claim for relief.

         One: Stover is actually innocent of possession of a controlled substance and the crime of simultaneous possession of drugs and firearms:

         Stover maintains he is actually innocent because the prosecution failed to prove he possessed a usable amount of methamphetamine. Stover relies upon Harbison v. State, 302 Ark. 315 (1990), where the Supreme Court of Arkansas held that possession of less than a usable amount of cocaine did not constitute criminal possession of the drug. Stover points to the testimony of Julie Hathcock (“Hathcock”), a forensic chemist working for the Arkansas State Crime Laboratory, that the baggie found on Stover when arrested contained .1736 grams of a white substance. Docket entry no. 12-2, page 226. Hathcock tested the substance, finding it to be methamphetamine and dimethyl sulfone. She described dimethyl sulfone as “just a cutting agent” or “filler” which dilutes the methamphetamine. Docket entry no. 1202, page 227. Stover's counsel inquired: “Were you able, through testing, to determine how much methamphetamine and how much dimethyl sulfone were contained is this sample [the .1736 grams]?” Hathcock replied, “No, sir.” Id. Stover concludes that Hathcock's testimony was therefore insufficient to prove Stover possessed a usable amount of methamphetamine. Stover reasons that it was “entirely possible that the substance seized from Stover contained only a trace amount of methamphetamine and was ninety-nine percent dimethyl sulfone.” Docket entry no. 19-1, page 6.

         The question of whether a usable amount of methamphetamine was proved by the prosecution was not addressed in Stover's direct appeal because the Arkansas Court of Appeals found the issue was not preserved for appeal. However, the issue was addressed by the state courts when Stover claimed, in his Rule 37 petition, that his trial attorneys were ineffective for failing to preserve the claim for direct appeal. The trial court and the Supreme Court of Arkansas found no prejudice accrued to Stover due to his trial attorneys' failure to preserve this issue. The Supreme Court of Arkansas held:

In his third point on appeal, Stover contends that counsel were ineffective when they failed to move for a directed verdict on the basis that there was insufficient proof that he possessed a usable amount of a controlled substance. This specific challenge to the sufficiency of the evidence was raised on direct appeal and was found to have been waived. Stover, 2014 Ark.App. 393, at 1, 437 S.W.3d at 697.
Stover alleges that he was prejudiced by the failure to preserve the issue because the evidence was insufficient to show he possessed a usable amount of methamphetamine because expert testimony established that the sample found in his possession contained 0.1736 grams of both methamphetamine and dimethyl sulfone, but that the specific amounts of each substance contained in the sample could not be ascertained. However, the amount of a diluent, such as dimethyl sulfone, discovered in a controlled substance does not negate the criminality of its possession. See Ark.Code Ann. § 5-64-419(a)(b)(1)(A) (Supp. 2011) (stating in pertinent part that it is unlawful to possess methamphetamine with an aggregate weight including an adulterant or diluent in an amount that is less than two grams); see also Jones v. State, 357 Ark. 545, 553, 182 S.W.3d 485, 489 (2004) (holding that a measureable amount of methamphetamine includes the amount of the pure drug plus all adulterants). Furthermore, we have concluded that possession of 100 milligrams constituted a usable amount of methamphetamine. Jones, 357 Ark. at 553, 182 S.W.3d at 489. Here, the expert's testimony established that Stover possessed more than 100 milligrams of methamphetamine. Stover fails to demonstrate that had counsel preserved this issue for appellate review, the appellate court would have found that the evidence was insufficient to support the conviction. See Strain v. State, 2012 Ark. 42, at 3-4, 394 S.W.3d 294, 298 (per curiam).

Stover v. State, 2016 Ark. 167, 5-6.

         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). Here, Stover does not plead or prove that the Arkansas court ruling that he possessed a usable amount of methamphetamine was contrary to, or involved an unreasonable application of, clearly established federal law. Although the state Supreme Court did not specifically cite federal law, that failure is not problematic as neither the court's reasoning nor result contradicts federal law. See Cox v. Burger, 398 F.3d 1025, 1030 (8thCir. 2005). The applicable federal law requires the court to ask if, “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) [emphasis in original]. The Supreme Court of Arkansas' ruling that Stover possessed a usable amount of methamphetamine[3] is consistent with, and a reasonable application of the Jackson v. Virginia standard.

         Stover has also not shown that the adjudication of the claim by the Supreme Court of Arkansas resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. The record shows Stover possessed .1736 grams of a white substance, which forensic chemist Hathcock testified was methamphetamine and dilutant dimethyl sulfone. The relevant Arkansas statute, cited by the Supreme Court of Arkansas, provides it is unlawful to possess methamphetamine with a weight, “including an adulterant or diluent, ” of less than 2 grams. Ark. Code Ann. § 5-64-419(a)(b)(1)(A) (emphasis added). Thus, the statute, by definition, includes the weight of the diluent[4] with the weight of the controlled substance, in this instance methamphetamine. The statutory definition on how to calculate the amount, coupled with Arkansas case law holding 100 milligrams of methamphetamine to be a usable amount for purposes of possession, demonstrates that Stover possessed a usable amount of the controlled substance. (100 milligrams equals .1 gram; Stover possessed .1736 grams). See Jones v. State, 357 Ark. 545 (2004).

         Stover cites Harbison v. State, 302 Ark. 315 (1990), to no avail. Harbison, decided fourteen years before Jones, was convicted of possession of cocaine based upon his possession of a bottle which contained cocaine dust or residue. The amount of cocaine was described as too small to weigh with state crime laboratory equipment, which could weigh nothing smaller than one milligram. In other words, the amount of cocaine was one hundred times smaller than the amount recognized in Jones to be a usable amount. Because Stover possessed well over 100 milligrams of methamphetamine, the Harbison decision does not operate in his favor. Having carefully reviewed the trial record, we find the evidence meets and exceeds the requirements of Jackson v. Virginia. There is no merit in Stover's challenge to the sufficiency of the evidence.

         Stover's challenge to his possession convictions is also framed as a freestanding claim of actual innocence. Citing Herrera v. Collins, 506 U.S. 390 (1993), Stover argues that he demonstrates actual innocence on its own, not as a gateway to establishing other constitutional errors. Even if we assume a freestanding claim of actual innocence is a cognizable claim for habeas relief, Stover concedes that his burden is extraordinarily high, and that he must establish “facts which unquestionably establish his innocence.” See Whitfield v. Bowersox, 324 F.3d 1009 (8th Cir. 2003). The flaw in Stover's argument is that he does not submit new evidence to demonstrate actual innocence. Rather, he points to the evidence adduced at trial and argues factual innocence based on his interpretation of that evidence. See, e.g., Bousley v. U.S., 523 U.S. 614 (actual innocence means factual innocence, not mere legal insufficiency). It is clear that the proof needed to demonstrate a freestanding claim of actual innocence is greater than that required to show the evidence was insufficient to support his convictions. As noted above, Stover falls short of showing insufficient evidence existed to support his convictions for possession of methamphetamine and simultaneous possession of drugs and firearms. It follows that he also falls short of clearing the higher hurdle of proving a freestanding claim of actual innocence.

         In summary, there is no merit to Stover's claim of actual innocence, regardless of whether the claim is viewed as an attack upon the sufficiency of the evidence adduced at trial or whether the claim is a freestanding challenge to his convictions for possession of methamphetamine.

         Two(a): Stover received constitutionally ineffective assistance of counsel when his attorneys failed to properly challenge the sufficiency of the evidence at trial by claiming the prosecution failed to prove he possessed a usable amount of methamphetamine:

         This argument is intertwined with the first claim raised by Stover. In order to prove ineffective assistance of counsel, Stover must prove that (1) his attorneys' actions were unreasonable when viewed in the totality of the circumstances; and (2) he was prejudiced because there is a reasonable probability that, but for counsels' unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 688 (l983); Ryder v. Morris, 752 F.2d 327, 33l (8th Cir. l985). Stover bears a heavy burden in overcoming "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; Kellogg v. Scurr, 74l F.2d l099, ll0l (8th Cir. l984); Bell v. Lockhart, 74l F.2d ll05, ll06 (8th Cir. l984). This presumption is created to "eliminate the distorting effects of hindsight," and recognizes that "it is all ...


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