PROPOSED FINDINGS AND RECOMMENDATIONS

H. DAVID YOUNG, Magistrate Judge.

INSTRUCTIONS

The following recommended disposition has been sent to United States District Court Judge Susan Webber Wright. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:

From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

Mail your objections and "Statement of Necessity" to:

DISPOSITION

Brian K. Heard seeks a writ of habeas corpus pursuant to 28 U.S.C. §2254. Mr. Heard is currently in the custody of the Arkansas Department of Correction (ADC) as a result of pleading guilty in 2009 to four counts of delivery of a controlled substance. A sentencing hearing was conducted, and Mr. Heard was sentenced as an habitual offender to consecutive sentences totaling 100 years. Mr. Heard sought relief pursuant to Rule 37 in state court, claiming that his guilty pleas were involuntary. The trial court denied relief, and this decision was affirmed on appeal. Heard v. State, 2012 Ark. 67. Mr. Heard filed the Rule 37 petition pro se but was represented by counsel at the Rule 37 hearing and on appeal in the Rule 37 proceedings. He is represented by counsel in this case. Here, he advances the following claims for habeas corpus relief:

The respondent contends that the claims are not properly before this Court due to the petitioner's failure to adequately raise the claims in a properly filed state postconviction petition, as required by Wainwright v. Sykes, 433 U.S. 72 (1977), and its progeny. Specifically, the respondent contends that Mr. Heard raised his allegations that his attorney was ineffective for failing to advise that he could enter a conditional guilty plea and for failing to fully inform him of his sentencing exposure at the trial level but failed to raise these claims on his Rule 37 appeal. Further, the respondent contends Mr. Heard did not raise the claim of ineffective assistance of counsel for failing to present witnesses at the sentencing hearing in state court at either the trial or appellate level. By previous Court Order the petitioner was notified of his opportunity to explain why the claims are not procedurally barred, and the petitioner has filed a responsive pleading. Docket entry no. 20. We will first consider whether some or all of the grounds1 are procedurally barred, then address the merits of claims properly before the Court.

Procedural Default: In Wainwright v. Sykes, supra, the United States Supreme Court held that a federal court should not reach the merits of a litigant's habeas corpus allegation if he has procedurally defaulted in raising that claim in state court: that is, if he was aware of the ground, but failed to pursue it to a final determination. The exception created by the Supreme Court permits such an allegation to be addressed if the litigant can establish "cause" for his failure to assert the known ground and "prejudice" resulting from that failure. See, also, Clark v. Wood, 823 F.2d 1241, 1250-51 (8th Cir. 1987); Messimer v. Lockhart, 822 F.2d 43, 45 (8th Cir. l987). The Wainwright v. Sykes cause and prejudice test was clarified by two subsequent Supreme Court decisions, Smith v. Murray, 477 U.S. 527 (1986), and Murray v. Carrier, 477 U.S. 478 (1986).

With respect to cause, these cases explain that the Court has "declined in the past to essay a comprehensive catalog of the circumstances that [will] justify a finding of cause." Smith v. Murray, 477 U.S. 533-34. However, one can discern from these cases several circumstances in which cause might be found: first, where some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rules, see Murray v. Carrier, 477 U.S. at 488; second, where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, see Reed v. Ross, 468 U.S. 1 (1984); or third, if the litigant failed to receive the effective assistance of counsel. See Murray v. Carrier, 477 U.S. at 488. In addition, there is one extraordinary circumstance where a federal habeas court may grant relief without a showing of cause: where a constitutional violation has probably resulted in the conviction of one who is actually innocent. Id. at 496.

Our initial inquiry is if and how the claims were raised in state court. Since Mr. Heard entered guilty pleas, no direct appeal was available. He did file a Rule 37 petition, and a hearing was conducted on this petition. In the Rule 37 petition Mr. Heard alleged the following grounds for relief: (1) trial counsel's advice to plead guilty and allow the trial court to sentence him was unprofessional and unreasonable; (2) trial counsel was ineffective for failing to inform petitioner of his right to enter a conditional plea of guilty and appeal the trial court's denial of his motion to suppress; (3) Trial counsel was ineffective for failing to seek to withdraw the plea due to a manifest injustice; (4) Failure to adhere to the plea agreement; and (5) Facial invalidity of the judgment and commitment due to an erroneous date on the document. Docket entry no. 10, pages 106-113. The trial court addressed all five claims in its decision denying Rule 37 relief. Docket entry no. 10, pages 133-134). On appeal, the petitioner argued that his guilty plea was coerced and that his trial counsel was ineffective. Heard v. State, 2012 Ark. 67. The Arkansas Supreme Court described the claims on appeal as petitioner's contentions "that counsel's actions coerced him into accepting the plea agreement, and that, but for counsel's unethical conduct and errors, he would not have entered a guilty plea." Id.

Our review of the state court proceedings persuade us that the petitioner presented ground one in state court, both at the trial and appellate level. As a result, this ground is properly before this Court. There is some confusion on whether the petitioner raised more than this ground on appeal of his Rule 37 petition, as the Arkansas Supreme Court noted the petitioner raised "a single point on appeal" but also described the allegations as a claim that the "trial court should have found appellant's guilty plea was coerced and that trial counsel was ineffective." 2012 Ark. 67 (emphasis added). The petitioner, in his explanatory pleading, concedes that ground 5 was not raised in state court and is therefore procedurally barred. The petitioner argues that grounds two and three/four (a single claim) were not addressed on appeal of his Rule 37 petition due to ineffective assistance of counsel by his appellate lawyer. Out of an abundance of caution, we will assume that grounds two and three/four were raised in state court or that there was cause for them not being considered in the state forum. In making this decision, we are guided by the following language of the Eighth Circuit Court of Appeals:

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)).

Ground One — Coerced Guilty Plea: 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:

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

The trial court found the petitioner's decision to decline the prosecution's offer of a fifty year sentence "was an independent decision" made by Mr. Heard. Docket entry no. 10, page 134. On appeal, the Arkansas Supreme Court affirmed, noting the following:

Heard v. State, 2012 Ark. 67, 3-5.

Mr. Heard bears the burden of showing 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). First, he does not cite a federal case which was violated by the state court rulings. Instead, he seems to contend the state court decision was unreasonable in light of the evidence presented in state court. This argument fails, however, in large part because the state court found Mr. Heard's testimony was not credible. This factual finding is "presumed to be correct" pursuant to 28 U.S.C. §2254(e)(1), and Mr. Heard can rebut this presumption by producing "clear and convincing evidence." Id. He has not produced this type of evidence. Instead, he relies upon the same arguments presented in state court. In the absence of the statutory requirements, Mr. Heard's first claim for relief is without merit.

Grounds Two and Three/Four — Ineffective Assistance of Counsel: Mr. Heard alleges ineffective assistance of counsel in that his trial attorney failed to inform him of the possibility of entering a conditional guilty plea, and failed to inform him of his exposure if the trial court were allowed to determine the sentence. The Arkansas Supreme Court, in its denial of the petitioner's Rule 37 appeal, cited Strickland v. Washington, 466 U.S. 668 (1984), as the applicable standard for demonstrating ineffective assistance of counsel. The Court, focusing on the prejudice prong of the Strickland case, found that "[I]n order for a defendant to show that he was specifically prejudiced by counsel's deficient assistance prior to, or during the entry of, the defendant's guilty plea, the defendant must show that a reasonable probability exists that, but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial." Heard v. State, 2012 Ark. 67. The appellate court went on to find Mr. Heard failed to provide credible evidence that he would not have entered the guilty plea had his attorney provided effective assistance.

As with the first claim for relief, Mr. Heard must show 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). It is clear that the state court applied the prevailing federal law on the issue of ineffective assistance of counsel when it cited and applied the Strickland case. We find, based upon the presumptively correct findings of fact of the state court, that the state court decision was not based upon an unreasonable determination of the facts. As a result, we find that even assuming that petitioner's attorney acted erroneously in some fashion, he fails to satisfy the Strickland standard because he did not, and does not, demonstrate prejudice stemming from his attorney's behavior.

In summary, we recommend that the petition for writ of habeas corpus be dismissed and the relief requested be denied, as there is no merit to grounds one through four, and ground five is not before this Court because of its procedural bar.

Pursuant to 28 U.S.C. § 2253 and Rule 11 of the Rules Governing Section 2554 Cases in the United States District Court, the Court must determine whether to issue a certificate of appealability in the final order. In § 2254 cases, a certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(1)-(2). The Court finds no issue on which petitioner has made a substantial showing of a denial of a constitutional right. Thus, we recommend the certificate of appealability be denied.

IT IS SO ORDERED.