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Addison v. Kelley

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

October 9, 2018

NICHOLAS ADDISON ADC #162451 PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge Billy Roy Wilson. 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 § 2254 Petition for a Writ of Habeas Corpus filed by Nicholas Addison (“Addison”), an Arkansas Department of Correction (“ADC”) inmate. Doc. 2. Before addressing Addison's habeas claims, the Court will review the procedural history of the case in state court.

         On June 5, 2017, Addison pled guilty to robbery and battery in the first degree in Poinsett County Circuit Court.[1] State v. Addison, Poinsett County Circuit Court No. 56CR 2016-391. Doc. 2 at 16, 19; Doc. 11-1 (change of plea transcript). The trial court imposed the sentence agreed to by the parties, as part of the plea agreement, and Addison was sentenced as a habitual offender. For the robbery, he was sentenced to twenty years in the ADC, plus a ten-year suspended sentence. For the battery, he was sentenced to a concurrent ten-year term, plus a ten-year suspended sentence. Sentencing Order, Doc. 2 at 23-25; Doc. 11-1 at 8.

         By entering an unconditional guilty plea, Addison waived the right to challenge his conviction on direct appeal.[2]

         On August 4, 2017 and August 18, 2017, Addison filed petitions for post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure.[3] Doc. 2 at 50-54. As grounds for relief, Addison argued that his trial counsel was ineffective for: (1) failing to perform an adequate investigation to develop a defense to prove Addison's actual innocence[4] and to file pretrial motions to challenge the State's case; (2) failing to develop witness statements and testimony to support Addison's innocence; and (3) failing to file a motion objecting to Addison being jailed for over nine months before the trial date, in violation of the Speedy Trial requirements of Ark. R. Crim. P. 28. Id. at 53.

         On September 5, 2017, the trial court summarily denied Addison's Rule 37 Petition, along with his Motion for Transcript and Motion to Proceed In Forma Pauperis. In doing so, the trial court noted that: (1) Addison had presented “mere conclusory allegations;” (2) the Forensic Report conducted pursuant to a court-ordered mental evaluation revealed that Addison did not suffer from a mental disease or defect, had the capacity to understand the criminal proceedings, and was able to assist in his own defense;[5] (3) Addison knowingly and voluntarily pled guilty; and (4) Addison was sentenced in accordance with the Agreed Sentence Recommendation. Doc. 2 at 59.

         Addison did not appeal the trial court's denial of postconviction relief. See Petition, Doc. 2 at 2, 5-12 (acknowledging he made no attempt to appeal the trial court's rejection of his Rule 37 petition).

         On May 29, 2018, Addison filed this pro se § 2254 habeas action. He alleges that his trial counsel provided constitutionally ineffective representation by: (1) providing deceptive advice about the consequences of his guilty plea, including advising him that if he pled guilty he would be sentenced to 120 months, not 240 months, with an additional 120 months as a suspended sentence; (2) failing to investigate, develop or preserve certain defenses and failing to file any pretrial motions, such as motions to suppress inconsistent witness statements and to challenge speedy trial violations; (3) failing to discover and prove Addison's actual innocence; and (4) denying Addison the opportunity to assert an affirmative defense related to his mental health or competence, under Ark. Code Ann. § 5-2-305(b), [6] and Ake v. Oklahoma, 470 U.S. 68, 74, 105 S.Ct. 1087 (1985) (holding that “when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one.”). Doc. 2 at 5-10.

         Respondent argues that Addison's habeas claims should be dismissed because they are: (1) procedurally defaulted; (2) without merit; and (3) waived as a result of his guilty plea. Doc. 7. Addison has filed a Reply. Doc. 9. Thus, the issues are joined and ready for disposition.

         For the reasons discussed below, the Court recommends that all of Addison's habeas claims be denied, and the case dismissed, with prejudice.

         II. Discussion

         A. All of Addison's Claims Are Procedurally Defaulted

         A habeas petitioner must “fairly present” his claims in state court before seeking § 2254 relief in federal court. Murphy v. King, 652 F.3d 845-848-49 (8th Cir. 2011); 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus ... shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State”); Perry v. Kemna, 356 F.3d 880, 886 (8th Cir. 2004) (“To avoid a procedural default, a habeas petitioner must ‘present the same facts and legal theories to the state court that he later presents to the federal courts.'”); Miller v. Lock, 108 F.3d 868, 871 (8th Cir. 1997) (“[B]oth the factual grounds and legal theories on which the claim is based must have been presented to the highest state court in order to preserve the claim for federal review.”).

         By exhausting all available state court remedies, a habeas petitioner gives the State that convicted him an “opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)(omitting internal quotations When a petitioner fails to fully exhaust his claims in state court and the time for doing so has expired, his claims are procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). When a procedural default occurs, federal habeas review of the claim is barred unless the prisoner can demonstrate “cause” for the default and “actual prejudice” as a result of the alleged violation of federal law, or demonstrate that failure to consider his claim will result in a “fundamental miscarriage of justice.” Id. at 750.

         Addison failed to include Claims 1 and 4 in his Rule 37 Petition and failed to appeal the trial court's denial of Claims 2 and 3. Thus, all four of the ineffective assistance of counsel claims Addison is asserting in this action are procedurally defaulted.

         B. Addison Has Failed to Establish That Any Exception Applies to Excuse His Procedural Default of Those Claims.

         The Court still may proceed to address the merits of Addison's procedurally defaulted claims if he can demonstrate the “cause and prejudice” or “actual innocence” exceptions to procedural default. See Washington v. Delo, 51 F.3d 756, 760 (8th Cir. 1995) (cause and prejudice exception generally requires a showing of “some external impediment” that prevented the raising of a habeas claim, and that the “obstacle caused actual prejudice.”); Schlup v. Delo, 513 U.S. 298, 327, (1995) (actual innocence exception requires a petitioner to show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.”).

         1. Mental Condition

         The Court first considers whether Addison's alleged mental condition might excuse his procedural default, based on his assertion that he “has been treated almost continuously” with “mental health meds.” Doc. 2 at 5. Serious mental illness may constitute both cause and prejudice necessary to excuse procedural default. Gordon v. Arkansas, 823 F.3d 1188, 1196-97 (8th Cir. 2016) (quoting Holt v. Bowersox, 191 F.3d 970, 974 (8th Cir. 1999)). However, a “conclusive showing of incompetence is required before mental illness can constitute cause.” Nachtigall v. Class, 48 F.3d 1076, 1081 (8th Cir. 1995). Addison must also show that his mental illness “interfered with” his “ability to appreciate” his position and to “make rational decisions” during the period he should have been pursuing post-conviction relief. Gordon, 823 F.3d at 1197 (omitting citations); see Nachtigall v. Class, 48 F.3d 1076, 1081 (8th Cir. 1995) (“Mental illness and legal competence are not identical, nor are all mentally ill people legally incompetent.”)

         First, there is nothing in the record to support a finding that Addison suffered, at any time, from a serious mental illness, much less one that interfered with his ability to pursue postconviction proceedings during the relevant time frame. On April 12, 2017, approximately two months before his June 5 guilty plea, Addison had a court-ordered mental health evaluation to determine his fitness to proceed to trial.[7] The clinical psychologist who conducted the evaluation diagnosed Addison with antisocial personality disorder[8] and a history of substance abuse, but found no evidence that Addison was suffering from any mental disease or defect at the time of the alleged offense. After the ...


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