J. THOMAS RAY, Magistrate Judge.
The following Recommended Disposition ("Recommendation") has been sent to United States District 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 within fourteen (14) days of the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.
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Pending before the Court is a § 2254 Petition for a Writ of Habeas Corpus filed by Petitioner, Anthony Toombs ("Toombs"), an Arkansas Department of Corrections prisoner. Doc. 1. Before addressing Toombs' habeas claims, the Court will review the procedural history of this case in state court.
On July 18, 2013, a Pulaski County jury convicted Toombs of first degree murder and felon in possession of a firearm. He was sentenced as a habitual offender to an aggregate prison sentence of 55 years.
On July 30, 2013, shortly after his conviction and before Ms. Jackson had initiated his direct appeal, Toombs filed two pro se motions with the trial court: (1) a Motion to Dismiss Counsel which contended Ms. Jackson was ineffective for encouraging him to accept a plea, in failing to move to suppress the recorded telephone statement he gave to Detective Hudson on August 22, 2012, and in failing to obtain an acquittal; and (2) a Motion to Suppress the statement he made to Detective Hudson. Doc. 17-7 at pp. 4-14 The trial court treated those motions, collectively, as a Rule 37 petition asserting an ineffective assistance of counsel claim against Ms. Jackson for not moving to suppress the statement Toombs made to Detective Hudson and not moving to reduce Toombs' bond.
On August 13, 2013, the court entered an Order denying Toombs' Rule 37 petition because he failed to establish that Ms. Jackson's alleged shortcomings satisfied the Strickland
On August 15, 2013, Ms. Jackson filed a direct appeal of Toombs' conviction with the Arkansas Court of Appeals. Doc. 17-2 at p. 130.
On August 20, 2013, Toombs returned to the trial court and filed a pro se "Motion to Appeal" the August 13, 2013 Order denying Rule 37 relief. Doc. 17-2 at p. 131. On October 22, 2013, he filed a pro se "Motion for a Transcript" stating that the transcript was necessary to support his allegations that Ms. Jackson had provided ineffective assistance of counsel. Doc. 17-2 at pp. 135-139.
On October 29, 2013, the trial court entered an Order holding that, because Toomb had failed to demonstrate a "compelling need" for the transcript to support his grounds for post-conviction relief, his Motion was denied.
On July 26, 2014, Toombs, who was now represented by Scott Scholl,
On April 27, 2015, Toombs filed a second pro se Rule 37 petition with the trial court. After reasserting essentially the same ineffective assistance of counsel claim against Ms. Jackson that he had asserted in his 2013 Rule 37 petition, Toombs made several new Rule 37 claims. Doc. 17-7 at pp. 36-47. On July 2, 2015, the trial court entered an Order denying the Rule 37 petition on the procedural ground that it was "second and successive." Doc. 17-7 at pp. 64-65.
Toombs appealed to the Arkansas Supreme Court. On December 10, 2015, the Court dismissed Toombs' appeal, citing the absolute prohibition against "second and successive" Rule 37 petitions. Toombs v. State, 2015 Ark. 471 (per curiam); Doc. 17-8.
On January 19, 2016, Toombs initiated this federal habeas action. Doc. 1. In his Petition,
Respondent has filed a Response arguing that all of Toombs' habeas claims are procedurally defaulted or fail on the merits. Doc. 17.
For the reasons discussed below, the Court concludes that Toombs has procedurally defaulted all of his habeas claims. Accordingly, the Court recommends that the Petition for a Writ of Habeas Corpus be denied, and the case dismissed, with prejudice.
In affirming Toombs' convictions on direct appeal, the Arkansas Court of Appeals summarized the evidence supporting his convictions for murder and being a felon in possession of a firearm:
As discussed previously, Officer Whitney of the North Little Rock Police Department presented evidence of Mr. Toombs's flight after being advised that he was wanted for the murder of Mr. Larkin.
Dr. Stephen Erikson, the Deputy Chief Medical Examiner of the Arkansas State Crime Lab, also testified for the State. First, he testified that there was no evidence that Mr. Larkin's gunshot wound occurred at close-range, supporting the State's assertion that the two men were not struggling and that Mr. Toombs did not shoot in self-defense. Dr. Erikson testified to the path of the bullet and that it was inconsistent with a ricochet-induced path. A straight path would indicate intent to shoot the victim in the head, according to the testimony of Dr. Erikson.
The evidence presented at trial was substantial enough that the jury did not have to resort to conjecture to convict Mr. Toombs of first-degree murder.
Toombs v. State, 2015 Ark.App. 71, *4-*6.
A habeas petitioner must first "fairly present" his claims in state court before seeking § 2254 relief in federal court. Murphy v. King, 652 F.3d 845-848-49 (8
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.
Respondent argues that all of Toombs' habeas claims are procedurally defaulted because none of the claims he now asserts were fully exhausted in state court and the time for doing so has expired. The Court agrees.
When such a procedural default occurs, federal habeas review of the defaulted 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. Coleman, 501 U.S. at 750.
Toombs' only argument to excuse his procedural default of his ineffective assistance of counsel claims is based on the Court's holding in Martinez v. Ryan, 566 U.S. 1 (2012). Because Martinez has been explicitly limited to claims of ineffective assistance of trial counsel — not appellate counsel — the only habeas claims Toombs has asserted that may be saved by the Martinez exception are those he has asserted against Ms. Jackson for her performance as his trial counsel.
Respondent argues that, even if all of Toombs' ineffective assistance of trial counsel claims are subject to an analysis under Martinez, none of the claims can be saved because they are not substantial claims. The Court agrees.
In Martinez v. Ryan and Trevino v. Thaler, 133 S.Ct. 1911 (2013), the Court recognized that, in a narrow range of habeas cases, a petitioner can rely on a lack of counsel or ineffective assistance of counsel, at the initial step of post-conviction review, to establish "cause" to excuse the procedural default of an ineffective assistance of counsel claim.
As applied to Arkansas proceedings, Martinez and Trevino only allow a default, where: (1) the claim of ineffective assistance of trial counsel was a `substantial' claim; (2) the `cause' consisted of there being `no counsel' or only `ineffective' counsel during the state collateral review proceeding; and (3) the state collateral review proceeding was the `initial' review proceeding with respect to the `ineffective-assistance-of-trial-counsel claim.'" Dansby v. Hobbs, 766 F.3d 809, 834 (8th Cir. 2014) (quoting Trevino v. Thaler, 133 S.Ct. 1911, 1918 (2013)); Sasser v. Hobbs, 735 F.3d 833, 853 (8th Cir. 2013).
To satisfy the first element of Martinez, Toombs must establish that his "underlying ineffective-assistance-of-trial-counsel claim is a substantial one." Martinez, 566 U.S. at 14; Dansby, 766 F.3d at 834. For an ineffective assistance of counsel claim to be "substantial," the habeas petitioner must demonstrate that his claim: (1) has "some merit"; and (2) is supported by at least some facts. Martinez, 566 U.S. at 14-16. If a habeas petitioner is unable to satisfy either part of this "substantiality test," his ineffective assistance of counsel claim is procedurally defaulted and cannot be considered by a federal court in a § 2254 habeas action. Id.
As discussed below, each of Toombs' procedurally defaulted ineffective assistance claims are either lacking in merit and/or "wholly without factual support." Accordingly, none of those claims fit within the narrow equitable exception necessary to excuse Toombs' procedural default. Martinez, 566 U.S. at 16; Dansby, 766 F.3d at 834.
Toombs contends that Ms. Jackson was constitutionally ineffective for failing to prevent the admission at trial of his incriminating statements made during a August 22, 2012 phone call with Detective Hudson.
Generally, a suspect in a custodial setting must be advised of his Miranda rights before he is subjected to interrogation by law enforcement. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Custodial interrogation is defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in a significant way." United States v. Hogan, 539 F.3d 916, 921 (8th Cir.2008) (citing Miranda, 384 U.S. at 444). "If the defendant is not in custody then [Miranda and its progeny] do not apply." Montejo v. Louisiana, 556 U.S. 778, 795 (2009").
The determination of whether questioning qualifies as custodial interrogation is a purely objective inquiry, which makes Toombs' subjective belief about this issue utterly irrelevant. Stansbury v. California, 511 U.S. 318, 323 (1984) (The "determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned."). Here, Toombs unquestionably initiated the phone call to Detective Hudson prior to Toombs' arrest, during a time when he clearly was not in custody. Detective Hudson was not legally required to advise Toombs of his Miranda rights at any point during the call, even though he elected to do so, after Toombs made incriminating statements.
Additionally, Toombs did not have a Sixth Amendment right to counsel during the August 22nd phone call. Beck v. Bowersox, 362 F.3d 1095, 1101-02 (8
"When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering." Montejo, 556 U.S. at 795.
No legitimate legal basis existed for Ms. Jackson, based on either the Fifth or Sixth Amendments, to move to suppress the recorded telephone call between Toombs and Detective Hudson. Thus, her failure to file such a motion could not possibly constitute ineffective assistance. See Thomas v. United States, 951 F.2d 902, 905 (8th Cir.1991) (per curiam) ("Counsel's failure to raise these meritless issues does not constitute ineffective assistance.").
Likewise, Toombs' trial counsel cannot be faulted for pursuing a strategy of self-defense at trial. A repeated theme in Toombs' habeas Petition is that his trial counsel's pursuit of a self-defense strategy doomed his case and was a breach of loyalty. For example, Toombs argues that the "only evidence tending to suggest a physical link between Anthony Toombs and the murder was brought out by the defense counsel." Doc. 1 at p. 7. This is not true. Toombs' admissions to Detective Hudson, before his arrest, directly connected him to the murder of the victim. Toombs' admissions were bolstered by witnesses who not only saw him at the scene of the murder with a gun, but also testified that Toombs and the victim were involved in an earlier dispute. This evidence left Ms. Jackson with no choice but to argue self-defense.
Because these defaulted ineffective assistance claims are lacking in merit and are without any factual support, the Martinez exception cannot be used to save those claims from procedural default.
Toombs argues that: (1) "there was no supporting evidence proving" he shot the victim; and (2) his trial counsel failed to "investigate important leads" to prove his innocence. Doc. 1 at p. 7. The first argument fails because Toombs essentially confessed to shooting the victim in his telephone conversation with Detective Hudson. The second argument fails because there is no evidence that any mitigating evidence existed that would have proved Toombs' innocence.
Toombs mentions two potential leads that might have led to mitigating evidence: (1) a statement from a confidential informant that "he knew who was responsible for Mr. Larkin's death"; and (2) the testimony of Clifton Page, a witness identified by the prosecution who was not called at trial. Doc. 1 at pp. 43-44.
The record demonstrates that Ms. Jackson investigated whether the confidential informant had information helpful to the defense and found the lead to be a "dead end." During a July 15, 2013 pretrial hearing, Ms. Jackson disclosed to the court the existence of a tip from a confidential informant who reported that "there was potentially a person out there [who] may have done this crime." Ms. Jackson raised this "possibility" only to make a record of her investigation into this lead and her conclusion there was nothing to this "word on the street type of information" deserving further investigation. Doc. 17-9 at p. 26. Toombs was present during this hearing and said nothing to dispute his trial counsel's statement or to suggest that any further investigation was needed.
Nothing in the record indicates that Clifton Page had information that would have exonerated Toombs. To the contrary, Toombs' own description of what Page knew shows that his testimony would have helped the prosecution, not the defense. Toombs contends that: "Mr. Page stated that he saw me pull up in my sprinkled blue truck . . . and shoot out of the drivers side window" while "no one was standing on the porch" and "the shoots [sic] missed the house." Doc. 1 at p. 44. Although Mr. Page, like the other eyewitnesses, did not see Toombs shoot the victim, Mr. Pages' testimony would have placed Toombs at the scene firing a gun at the house where Mr. Larkin's body was later discovered. At a minimum, Mr. Page's testimony established that Toombs fired at the house, which left wide open the possibility that one of the bullets hit Mr. Larkin, who managed to make it outside to the porch, where he died. Assuming this testimony had been elicited, it would not have increased the likelihood of an acquittal. Thus, in deciding not to call Mr. Page as a defense witness, it appears Ms. Jackson made a sound strategic decision that is now entitled to deference. See Williams v. Armontrout, 912 F.2d 924, 934 (8th Cir. 1990) ("Decisions relating to witness selection are normally left to counsel's judgment and this judgment [should not] be second guessed on hindsight.").
Because these defaulted ineffective assistance claims are lacking in merit and are without any factual support, the Martinez exception cannot be used to save them from procedural default.
There is no merit to Toombs' contention that Ms. Jackson was constitutionally ineffective for "agreeing with the prosecutor" that Toombs' truck was blue. Doc. 1 at p. 41. Photographs of Toombs' truck were admitted into evidence at trial. Doc. 7-4 at pp. 93-98. The truck is two-tone in color, with the top portion either dark blue or dark gray and the side panels light gray or silver. Consistent with what appears to be depicted in those photographs, Ms. Jackson told the jury that Toombs' truck was silver and blue. Doc. 17-4 at p. 183. Toombs fails to explain how any subtle differences in the color of his multi-colored truck had anything to do with the outcome of the trial. After all, it was undisputed that Toombs was present at the murder scene, had been in a dispute with the victim, and was in possession of a small caliber gun that he admitted firing in the victim's direction.
Because this defaulted ineffective assistance claim is lacking in merit or factual support, the Martinez exception cannot save it from procedural default.
Toombs faults Ms. Jackson for calling his work supervisor, Mr. Wiley, to testify "as a character witness." After Mr. Wiley offered his supporting testimony that Toombs was a "good worker," the prosecution impeached Mr. Wiley with evidence of his prior criminal record. Doc. 1 at p. 42; Doc. 17-4 at pp. 227, 228-230. There are at least three serious problems with Toombs' argument. First, Mr. Wiley was not called as a character witness — he was called during the sentencing phase to show that Toombs was a dependable employee and a contributing member of society. Doc. 17-4 at pp. 226-230. Second, Toombs does not allege, much less argue, that Mr. Wiley's testimony resulted in an increased sentence. Finally, the decision to call Mr. Wiley as a witness was a matter of strategy that is not subject to being second-guessed in a Strickland analysis. See Williams, 912 F.2d at 934 (8
Because this defaulted ineffective assistance claim clearly lacks merit, the Martinez exception cannot be used to save this claim from procedural default.
The murder weapon was never recovered. However, bullet fragments were recovered and testimony was introduced, though Steve Hargis, a firearms expert with the Arkansas State Crime Laboratory, that the bullet impressions were consistent with being fired through a .22 caliber pistol and inconsistent with being fired through either a .38 or .32 caliber pistol. Doc. 17-4 at p. 76-78. Because there was no murder weapon, Mr. Hargis could not perform testing to confirm the recovered bullet fragments had been fired from a particular gun. Id. at 80-81.
Toombs makes the conclusory argument that Ms. Jackson somehow should have located his gun and tested it. Toombs' argument appears to rest entirely on his nebulous statement to Detective Hudson that he "had a little old gun . . . [like] a .32 or something." No one would dispute that a .22 caliber pistol is a "little old gun," which is precisely what Toombs said he had and fired at the victim after their dispute.
There is nothing in the record to indicate how Ms. Jackson should have gone about trying to recover Toombs' gun and testing it before trial. Although the record suggests that Toombs may have known the location of his .32 caliber handgun, he took no steps to disclose its location to Ms. Jackson.
Second, it is pure speculation to conclude that if Toombs had provided his gun to his counsel and testing had been conducted, the results would have exonerated Toombs as the shooter. Toombs admitted in his telephone conversation with Detective Hudson that he fired "a little old gun . . . [like] a .32 or something." Thus, Toombs himself appeared to be unsure about the exact caliber of the weapon.
Witnesses at trial also testified seeing Toombs on the night of the murder with a .32 or .38, but this in no way rules out the possibility that Toombs actually had a a .22 handgun and used it to shoot the victim. Doc. 17-3 at pp. 8-10; 41; 71. Steve Hargis testified that it would be impossible for witnesses more than arm's length away to distinguish with the naked eye whether a person was holding a .32 or a .22 caliber, both of which unquestionably fit within Toombs' admission that he possessed and fired "a little old gun" in the victim's direction. Id. at 79-80. Thus, the testimony of eyewitnesses, who reportedly saw Toombs, from a distance, with a small caliber pistol, in no way supports Toombs' theory that the gun he admitted firing at the victim could not have been a .22 caliber weapon.
Because this defaulted ineffective assistance claim lacks merit and has no factual support, the Martinez exception cannot be used to save this claim from procedural default.
Even giving Toombs the benefit of having all of his ineffective assistance of trial counsel claims analyzed under Martinez, he still remains in procedural default on all of the habeas claims he has asserted in this action. Accordingly, he is not entitled to any habeas relief.
IT IS THEREFORE RECOMMENDED THAT the Petition for a Writ of Habeas Corpus be DENIED and this habeas case be DISMISSED, WITH PREJUDICE. IT IS FURTHER RECOMMENDED THAT a Certificate of Appealability be DENIED pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases.
During the hearing, Toombs admitted that Ms. Jackson had talked to him at length on more than five occasions; presented to him the defense she proposed to offer at trial; and interviewed all of his proposed witnesses. Id. at pp. 7-10. Additionally, when Toombs was asked if he wanted to proceed "on his own" at the upcoming trial, he stated that he wanted Ms. Jackson relieved and a new attorney appointed. The trial court denied his motion. Id. at pp. 11-12.
Because Toombs was proceeding pro se when the trial court denied his first Rule 37 petition, the Court will extend to Toombs the same benefit offered by Respondent and analyze all of his ineffective assistance of trial counsel claims under the Martinez exception. In doing so, the Court recognizes that, if Toombs were determined to have knowingly abandoned his appeal of this first Rule 37 petition, the Martinez exception could not be applied to any of his ineffective assistance of counsel claims. See Arnold v. Dormire, 675 F.3d 1082, 1087 (8
