J. THOMAS RAY, Magistrate Judge.
The following Recommended Disposition ("Recommendation") has been sent to United States District 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 the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.
Pending before the Court is a § 2254 Petition for a Writ of Habeas Corpus filed by Petitioner, James R. Griffin ("Griffin"). Doc. 1. Before addressing Griffin's habeas claims, the Court will review the procedural history of the case in state court.
On January 11, 2016, Griffin appeared, with counsel, in the Circuit Court of Craighead County, Arkansas, and, pursuant to a negotiated plea, pleaded guilty to one count of rape and two counts of sexual assault in the second degree. State of Arkansas v. James R. Griffin, Craighead County Circuit Court Case No. CR 2015-0751 ("state criminal case").
Griffin did not pursue a direct appeal from his convictions.
On August 17, 2016, Griffin filed a petition for a writ of error coram nobis in the state criminal case. Doc. 5-4. On April 21, 2017, having received no ruling on his pending petition, Griffin filed a petition for a writ of mandamus in the Arkansas Supreme Court. Doc. 5-5. On April 28, 2017, the Craighead County Circuit Court entered an Order denying his petition for a writ of error coram nobis, holding that the alleged basis for relief was not cognizable. Doc. 5-6.
On May 18, 2017, Griffin appealed the Craighead County Circuit Court's denial of a writ of error coram nobis to the Arkansas Supreme Court.
On June 8, 2017, Griffin, proceeding pro se, initiated this § 2254 action.
On January 18, 2018, the Arkansas Supreme Court held the Griffin's request for an extension of time to file a brief in support of his pending petition for writ of error coram nobis was moot because it was clear from the record that Griffin could not prevail on appeal.
Respondent argues that all of Griffin's habeas claims are procedurally defaulted. Doc. 5. Griffin has filed a Reply. Doc. 8. Thus, the issues are joined and ripe for resolution.
For the reasons discussed below, the Court recommends that the Petition for a Writ of Habeas Corpus be denied, and the case dismissed, with prejudice.
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).
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 Griffin's 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. Alternatively, Respondent argues the claims should be denied on the merits. The Court agrees that Griffin's claims are either inexcusably procedurally defaulted or fail on the merits.
Griffin acknowledges that he failed to seek Rule 37 relief, but he contends that his petition for error coram nobis was a "proper vehicle" for challenging his guilty plea because it was obtained "through fear, duress, and threat." While a writ of coram nobis may issue to remedy "a coerced guilty plea," "allegations made in support of error coram nobis that are premised on ineffective-assistance-of-counsel claims are not cognizable in error coram nobis proceedings." Nelson v. State, 2014 Ark. 91, *5; see also Friend v. Norris, 364 Ark. 315, 317, 219 S.W.3d 123 (Ark. 2005) (per curiam) (state habeas corpus challenge to validity of guilty plea should have been brought in a timely filed Rule 37 petition for post-conviction relief). Additionally, the Arkansas Supreme Court does not accept a petitioner's allegation that his claim involves a coerced guilty plea. Instead, the court "looks to the true nature of a petitioner's claim." Nelson v. State, 2014 Ark. 91 at *5 (concluding that Nelson's claim, while couched in terms of a coerced guilty plea, was actually based on alleged ineffective assistance of counsel). Here, the Circuit Court, which rejected Griffin's writ or error coram nobis as being premised solely on "having been ineffectively represented" by his counsel, construed all of Griffin's challenges to his plea as rooted in his attorney's alleged errors. Doc. 5-6.
On appeal, the Arkansas Supreme Court ruled initially that none of Griffin's claims were cognizable. Exhibit A at p. 1. This is consistent with the Circuit Court's ruling. However, as to Griffin's claim that his guilty plea was coerced, the Court went on to hold that he failed to meet his burden of presenting evidence in support of that claim. Exhibit A at p. 3. To the extent that the Arkansas Supreme Court's ruling could be construed as rejecting, on the merits, Griffin's claim that his plea was coerced, the claim is not procedurally defaulted and may be addressed on the merits. However, the claim still fails because Griffin has not established either of the two limited circumstances that would permit him to obtain federal habeas relief.
As to Griffin's procedurally defaulted claims, the Court still may proceed to address the merits of those 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."). If a habeas petitioner does not establish cause, there is no need to consider whether he has established prejudice. Sherron v. Norris, 69 F.3d 285, 289 (8th Cir. 1995).
Griffin argues that his appeal of the denial of a petition for a writ of error coram nobis was "illegally thwarted" in state court. This conclusory assertion fails to address or explain why Griffin did not fairly and properly present his claims in state court.
Griffin also argues that the state court lacked jurisdiction to issue the Judgment and Commitment Order. For cause, Griffin points to Respondent's statement that a recording of the state court change of plea hearing had yet to be located and might not be available. Doc. 5 at 1-2, n. 1. However, Respondent later advised the Court that a recording of the guilty-plea colloquy had been located and was available. Doc. 9. Respondent's initial uncertainty as to the availability of the plea hearing transcript has no bearing on the state court's jurisdiction or Griffin's procedural default.
Griffin's generalized and sweeping allegations fail to establish "cause" to excuse his procedural default.
Griffin also has not demonstrated a miscarriage of justice through actual innocence. Griffin points to the original police report and investigative statements as "evidence" of his innocence, but he fails to explain how such evidence establishes his actual innocence.
Finally, assuming Griffin intended to assert a free-standing actual innocence claim, that claim also fails. First, the law is unresolved as to whether such a claim is even cognizable. See McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013). Second, assuming such a claim is cognizable, Griffin's failure to establish actual innocence sufficient to excuse his procedural default means that he also cannot make the "extraordinarily high" showing required to establish a free-standing actual innocence claim. Dansby v. Hobbs, 766 F.3d 809, 816 (8th Cir. 2014) (omitting citations and internal quotations) (explaining that free-standing actual innocence claim, if recognized, would require "more convincing proof" that than the "gateway" standard for procedurally defaulted claims).
Thus, Griffin's claims are either inexcusably procedurally defaulted or fail on the merits.
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.
Appellant James R. Griffin, who entered a plea of guilty to rape in 2016, lodged an appeal in this court from the denial by the trial court of his pro se petition for writ of error coram nobis. Now before us is Griffin's motion for extension of brief time. Because it is clear from the record that Griffin could not prevail on appeal, the appeal is dismissed. See Justus v. State, 2012 Ark. 91. The dismissal of the appeal renders the motion moot.
Griffin argued in his coram nobis petition that he would not have entered a guilty plea if he had been properly advised by his attorney. He argued that he was under duress when the plea was entered as the result of the poor advice by counsel and counsel's failure to effectively negotiate a plea bargain. He further asserted as grounds for the writ that no rape had occurred. As none of the claims were cognizable as a ground for the writ, the trial court did not err in denying the petition.
The standard of review of an order entered by the trial court on a petition for writ of error coram nobis is whether the trial court abused its discretion in granting or denying the writ. Newman v. State, 2014 Ark. 7. An abuse of discretion occurs when the court acts arbitrarily or groundlessly. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. There is no abuse of discretion in the denial of error coram nobis relief when the claims in the petition were groundless. Id.
A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fict extrinsic to the record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available to address certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. Error corarn nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Nelson, 2014 Ark. 91, at 3, 431 S.W.3d at 854.
With respect to Griffin's allegation that he was under duress when he entered his plea of guilty by virtue of improvident advice from his attorney, the claim is essentially an allegation of ineffective assistance of counsel with the underlying claim that his plea was not entered intelligently and voluntarily because of the advice lie received. The allegation can only be brought pursuant to Arkansas Rule of Criminal Procedure 37.1 (2016), not in a petition for writ of error coram nobis. White v. State, 2015 Ark. 151, 460 S.W.3d 285; see also Nelson, 2014 Ark. 91, 431 S.W.3d 852 (Error coram nobis proceedings are not a substitute for proceeding under Rule 37.1 to challenge the validity of a guilty plea, nor are the two proceedings interchangeable.). Ineffective-assistance-of-counsel claims are not cognizable in error coram nobis proceedings under our state law, and coram nobis proceedings are not to be used as a substitute for raising such claims of ineffective assistance of counsel under our postconviction rule. State v. Tejeda-Acosta, 2013 Ark. 217, at 8, 427 S.W.3d 673, 678.
To prevail on a claim that a writ of error coram nobis is warranted because a plea was coerced, the petitioner bears the burden of establishing that the plea was the result of fear, duress, or threats of mob violence as previously recognized by this court as grounds for a finding of coercion. Green v. State, 2016 Ark. 386, 502 S.W.3d 524. Griffin did not meet that burden. An allegation that a guilty plea was coerced in the sense that it was involuntarily and unknowingly given as a result of erroneous advice does not constitute showing of a coerced plea within the scope of a coram nobis proceeding. See White, 2015 Ark. 151, 460 S.W.3d 285.
Griffin's claim that no rape occurred was a challenge to the sufficiency of the evidence to sustain the judgment. We have repeatedly held that attacks on the sufficiency of the evidence are not within the purview of a coram nobis proceeding. Jackson v. State, 2017 Ark. 195, 520 S.W.3d 242.
Finally, Griffin contended in his petition that a hearing should be held on his allegations. The trial court is not required to hold a hearing on a coram nobis petition if the petition clearly has no merit. Griffin's petition failed to state a cause of action to support issuance of the writ; accordingly, the trial court did not err in denying it without a hearing.
Appeal dismissed; motion moot.
HART, J., dissents.
