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.
Pending before the Court is a § 2254 Petition for a Writ of Habeas Corpus filed by Petitioner, Earl Delmar Pigg ("Pigg"). Doc. 2. Before addressing Pigg's habeas claims, the Court will review the procedural history of the case in state court.
On August 8, 2012, a jury convicted Pigg of eleven counts of rape and one count of interference with custody. The trial court imposed the jury recommended sentence of life on each count of rape and ten years on the interference conviction, with all sentences to run consecutively.
In Pigg's direct appeal, he contended that the trial court erred in: (1) denying his motion to admit evidence that A.S.,
On October 23, 2014, the Arkansas Supreme Court rejected both of Pigg's arguments and affirmed his convictions. Pigg v. State, 2014 Ark. 433 ("Pigg I"). In doing so, the Court held that: (1) any error in excluding the testimony Pigg argued would have revealed A.S.'s alleged motivation to "falsely" accuse him was harmless because the evidence of his guilt was "so overwhelming;" and (2) Pigg's hearsay argument was not preserved for appellate review. Id. at *5.
Proceeding pro se, Pigg sought postconviction relief in the state circuit court under Rule 37 of the Arkansas Rules of Civil Procedure. In his Rule 37 Petition and supplemented Petition, Pigg alleged four categories of error.
First, he contended that his trial counsel was constitutionally ineffective for:
Second, Pigg alleged that authorities failed to "disclose numerous police reports" involving complaints Piggs had previously made against the victims and their families, in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Third, Pigg asserted a "cumulative error" claim and also argued that that the prosecution failed to disclose that State's witnesses "told numerous lies" during the investigation "under relentless coercion [from the prosecution]. . . ." Doc. 10-10, Tr. at 60, 83-84.
Finally, Pigg asserted a "newly discovered" evidence claim, supported by affidavits from three witnesses suggesting that youth minister Dalton Smith conspired with the victims to have Pigg falsely charged and convicted in retaliation for Pigg reporting Smith's sexual relationship with A.S. Id., Tr. at 84-85.
On March 18, 2015, the trial court held a hearing on Pigg's Rule 37 Petition. Doc. 10-12 at 2-137. Three witnesses testified: (1) Pigg; (2) Pigg's trial counsel, William L. Griggs, IV ("Attorney Griggs");
In his pro se appeal to the Arkansas Supreme Court, Pigg pursued only three of the many Rule 37 claims he made before the trial court: (1) his attorney was ineffective in investigating the facts of the case and developing potential defense witness testimony from Sammy Ferris, Kenneth Crowley, Michael Hopewill and Skylar Sparks;
On March 10, 2016, the Arkansas Supreme Court affirmed the denial of Rule 37 relief. Pigg v. State, 2016 Ark. 108 ("Pigg II"); see also Doc. 10-15.
On July 11, 2016, Pigg initiated this § 2254 action. Doc. 2. On September 30, 2016, the Respondent filed her Response. Doc. 10. On January 3, 2017, Pigg filed a 103 page Reply Brief and 700 pages of supporting exhibits that significantly enlarged the claims he asserted in his initial habeas Petition.
While the Court is required to construe Pigg's habeas Petition liberally, this does not relieve Pigg of the burden of "stat[ing] the facts supporting each ground" for habeas relief. See Rule 2(c)(2) of the Rules Governing Section 2254 Cases in the United States District Courts; Jones v. Jerrison, 20 F.3d 848, 853 (8th Cir. 1994). Thus, as a matter of law, the Court is not required to consider any of Pigg's entirely conclusory habeas claims, which are not supported by any facts or law.
To facilitate its discussion of Pigg's cognizable ineffective assistance of counsel claims, the Court has grouped those claims as follows:
Docs. 2, 17.
Respondent argues that all of Pigg's habeas claims should be dismissed, with prejudice, because they are either procedurally defaulted, or without merit. Doc. 10. For the reasons discussed below, the Court agrees and recommends that all of Pigg's claims be denied and the case dismissed, with prejudice.
On direct appeal, the Arkansas Supreme Court reviewed the trial record and concluded that it contained "overwhelming" evidence of Pigg's guilt:
Pigg I, 2015 Ark.App. 572, *2-*5.
A year later, in affirming the trial court's denial of Rule 37 relief, the Arkansas Supreme Court provided an even more detailed discussion of the "overwhelming" evidence that supported Pigg's guilt:
Pigg II, 2016 Ark. 108, *5-6.
In order to prevail on his ineffective assistance of counsel claims, Pigg must establish that, but for his attorney's error, there is a reasonable probability that the result of the criminal proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Because the prosecution presented overwhelming evidence of Pigg's guilt, this creates a serious threshold problem for Pigg in trying to maintain the viability of his ineffective assistance of counsel claims.
A doubly deferential standard of review, imposed by 28 U.S.C. § 2254(d),
In ruling on those claims, the Arkansas Supreme Court correctly identified the controlling legal standard in Strickland v. Washington, 466 U.S. 668, 687 (1984) and properly applied it to deny Pigg post-conviction relief. Pigg v. State, 2016 Ark. 108, *3. For Pigg now to obtain habeas relief on those claims, he must demonstrate that the Arkansas Supreme Court's application of the Strickland standard was "unreasonable," i.e., its decision was Aso lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fair-minded disagreement." Harrington v. Richter, 562 U.S. 86, 101-03 (2011).
Meeting this high bar is a daunting task and requires a habeas petitioner to show that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) but for counsel's error, there is a reasonable probability that the result of the criminal proceeding would have been different. Strickland, 466 U.S. at 687-88, 694. The law is clear that the defendant "bears the burden to meet [Strickland's] two standards." Weaver v. Massachusetts, 137 S.Ct. 1899, 1910 (2017).
In Section C (pages 17 through 34), Claims 1 through 4 are analyzed and the Court explains why Pigg has not overcome the highly deferential standard of review governing those habeas claims.
All of Pigg's other substantive claims are procedurally defaulted because they either were not adjudicated at all or were only partially adjudicated in state court. Before seeking federal habeas review, § 2254(b)(1)(A) requires a state prisoner to first "exhaus[t] the remedies available in the courts of the State," thereby affording the state courts "the first opportunity to address and correct alleged violations of [the] prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). 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. Id. at 731-32.
Under Arkansas law, ineffective assistance of counsel claims generally must be raised in a Rule 37 petition and may not be considered on direct appeal. Ratchford v. State, 357 Ark. 27, 31 (2004) ("It is well settled that this court will not consider ineffective assistance as a point on direct appeal unless that issue has been considered by the trial court."). Thus, to exhaust his Rule 37 ineffective assistance of counsel claims, Pigg was required to raise those claims with the trial court and then appeal the denial of relief to the Arkansas Supreme Court. Armstrong v. Iowa, 418 F.3d 924, 925-26 (8th Cir. 2005).
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. Coleman, 501 U.S. at 750.
Pigg makes only one argument to excuse his procedural default: his lack of an attorney, at the initial step of his Rule 37 post-conviction review, should be deemed to be "cause" to excuse his procedural default of those ineffective assistance of counsel claims. In support of this argument, Pigg relies on Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 133 S.Ct. 1911 (2013). Doc. 16 at 3-8. However, as explained below, Martinez either does not apply or, if it does, Pigg cannot meet the essential elements required to excuse his default of those claims.
Martinez and its progeny apply only to claims that were defaulted in the initial post-conviction proceeding. In Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012), the Court explicitly held that Martinez is not applicable to excuse default of ineffective assistance claims that were litigated in an initial review post conviction proceeding, but not preserved in the post-conviction appeal. See Martinez, 566 U.S. at 16 (holding does not extend to defaults occurring in other kinds of proceedings, "including appeals from initial-review collateral proceedings").
In Pigg's initial Rule 37 proceeding, the trial court ruled against Pigg on Claims 5, 9, and 10. Pigg's Rule 37 appeal to the Arkansas Supreme Court did not raise or address the trial court's rejection of Claims 5, 9, and 10. Accordingly, Martinez does not apply to those three claims, which are now procedurally defaulted and cannot be saved. Accordingly, those claims require no further discussion, and the Court recommends that they be dismissed, with prejudice.
Pigg procedurally defaulted Claims 6, 7, and 8 by not raising them in his initial pro se Rule 37 proceeding. Thus, if Pigg can satisfy the Martinez test, those claims may be saved from procedural default. To meet his burden under Martinez, Pigg must establish that each of his "underlying ineffective-assistance-of-trial-counsel claim[s] is a substantial one." Martinez, 566 U.S. at 14; Dansby v. Hobbs, 766 F.3d 809, 834 (8th Cir. 2014) (quoting Trevino v. Thaler, 133 S.Ct. 1911, 1918 (2013); see also Sasser v. Hobbs, 735 F.3d 833, 853 (8th Cir. 2013) (applying Martinez and Trevino to Arkansas proceedings). 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 properly considered in a § 2254 habeas action. Id. Thus, in order for Pigg to save Claims 6, 7, and 8 from procedural default under Martinez, he must make a "substantial" showing under both the performance and prejudice prongs of Strickland.
In Section D (pages 34 through 41), Claims 6, 7, and 8 are analyzed and the Court explains why Pigg has not satisfied the "substantiality test" required to save those ineffective assistance of counsel claims from procedural default.
Pigg argues that his trial counsel failed to develop and present testimony to support the defense that Dalton Smith convinced the victims and their families to "concoct the accusations" against Pigg "in retaliation" for him reporting Dalton Smith's consensual sexual relationship with A.S.
Pigg's trial counsel attempted to present evidence to support portions of this defense at trial,
The trial judge denied the motion to the extent it sought to allow Pigg's attorney to question A.S. about her sexual relationship with Smith, in violation of the rape-shield statute.
In his initial Rule 37 proceeding, Pigg submitted affidavits from Rex Lee Ritchie, Michael Hopewell, and William Woods, who claimed that Smith, while incarcerated, confessed to them that he conspired with Pigg's accusers to have Pigg arrested and charged with rape.
In rejecting these arguments for Rule 37 relief, the trial court ruled that: (1) any evidence regarding the victim's "prior sexual conduct with `other males'" was inadmissible during the rape-shield hearing; (2) Pigg provided his counsel with the names of defense witnesses after the trial had started; and (3) the proposed defense witness testimony, as contained in the proffered affidavits, was inadmissible hearsay.
In affirming the trial court's denial of Rule 37 relief on those grounds, the Arkansas Supreme Court cited Pigg's failure to prove Strickland prejudice. Pigg II, 2016 Ark. 108. Finding that A.S.'s testimony was abundantly supported by "independent evidence," the Court held that "the evidence [against Pigg] . . . was so overwhelming that no prejudice would have resulted from the failure to present evidence of A.S.'s motivation to lie or from a failure to use the theory of defense that Pigg contends would have been successful." Id. at *6 (emphasis added).
In his § 2254 habeas papers, Pigg does not argue that the Arkansas Supreme Court unreasonably applied Strickland. Instead, he contends that he now has "new evidence" to support his contention that the rape charges against him were "trumped up." Doc. 17 at 27.
What Pigg offers is not "new evidence," but rather affidavits from new witnesses to support the same "conspiracy/false testimony" argument that was raised and rejected in his Rule 37 proceeding. Two of the three "new" witnesses, Sammy Ferris and Larry Crowley, offer testimony strikingly similar to the previously offered and rejected testimony of Rex Lee Ritchie, Michael Hopewell and William Woods.
The gist of all this so-called "new evidence" amounts to nothing more than Pigg trying to use different witnesses to retell the same story about Smith conspiring with other individuals to have Pigg falsely arrested and charged with rape. Pigg argued the same theory in his Rule 37 proceeding, both to the trial court and the Arkansas Supreme Court. The fact that Pigg has found new witnesses to support a previously presented claim does not transform their affidavits into "new evidence." Rather, Pigg seeks to submit cumulative evidence, which has already been rejected in his Rule 37 proceeding, to support a claim that was fully adjudicated and properly rejected in state court.
To satisfy the "newly discovered evidence" test, Pigg must demonstrate that: (1) the new "factual predicate [ ] could not have been previously discovered through the exercise of due diligence;" and (2) "the [new] facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2254(e)(2)(A)(ii) and (B). Pigg has made no effort to satisfy the "newly discovered evidence" test to allow the Court to consider the newly proffered affidavits.
In addition, the so-called "new evidence" is barred because this claim was fully adjudicated and rejected in Pigg's Rule 37 proceeding: "If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before the state court." Cullen v. Pinholster, 131 S.Ct. at 1398-99). Finally, there was nothing "unreasonable" about the decisions of the trial court or the Arkansas Supreme Court in rejecting this claim.
Accordingly, Pigg is not entitled to an evidentiary hearing to present and develop the so-called "new evidence," including, but not limited to, the details of Smith's yet-to-be-revealed first-hand explanation of his alleged conspiracy to retaliate against Pigg. McCamey v. Epps, 658 F.3d 491, 498 (5th Cir. 2011) (holding that in light of Pinholster and state court adjudication of petitioner's claim on the merits, district court erred in considering evidence presented at federal evidentiary hearing in support of petitioner's claim).
Pigg's only basis for obtaining relief on Claim 1 is to demonstrate that the Arkansas Supreme Court, based on the record before it, unreasonably applied Strickland in concluding that he suffered no prejudice as a result of his counsel's alleged failure to develop the "Dalton Smith defense."
Finally, the proposed "new evidence" Pigg seeks to present contains no "smoking gun" which exonerates him. Nothing about Dalton Smith allegedly being involved in a "conspiracy" to "wrongly" convict Pigg undermines any of the overwhelming direct and circumstantial evidence of Pigg's guilt. This is not a he-said, she-said case, built around the testimony of a single witness. A.S.'s testimony against Pigg was corroborated by multiple witnesses, including Pigg's own daughter and his ex-girlfriend. Even if his counsel had been able to present evidence to support Pigg's "conspiracy theory" at trial, no reasonably jury would have concluded, based on that "new evidence" that Pigg was not guilty. In fact, even if the jury had heard and believed Pigg's proposed witnesses' testimony about Dalton Smith trying to "frame" Pigg, there was still overwhelming independent evidence, from other reliable sources, of Pigg's guilt.
As to Claim 1, Pigg has failed to satisfy his burden of showing that the Arkansas Supreme Court unreasonably applied Strickland, or that its conclusion was based on an unreasonable determination of facts in light of the state court record. Accordingly, this claim should be dismissed, with prejudice.
Pigg also faults his trial counsel for not presenting other conspiracy theories to support his innocence. In fact, Pigg contends that most of the witnesses against him at trial were motivated by revenge to testify falsely against him.
In his Reply in further support of his habeas Petition, Pigg identifies 28 witnesses that his attorney should have interviewed and called at trial.
Some of these claims appear to have been fully adjudicated in the state postconviction proceeding, while others do not appear to have been fully adjudicated or arguably were not presented at all. To avoid grappling with complicated issues of procedural default, the interest of judicial economy weighs in favor of the Court considering, on the merits, all of the various "conspiracy theories" that comprise Claim 2. See Trussell v. Bowersox, 447 F.3d 588, 590-91 (8th Cir. 2006) (because procedural default is not a jurisdictional bar to federal habeas review, it can be bypassed "in the interest of judicial economy"); see 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
As to Pigg's argument that his trial counsel should have called other witnesses to offer testimony on his behalf, much of that proposed testimony would have been excluded as irrelevant, prejudicial, or otherwise inadmissible hearsay.
Pigg also has failed to establish Strickland prejudice. "To establish prejudice from counsel's failure to investigate a potential witness, a petitioner must show that the witness would have testified and that their testimony would have probably changed the outcome of the trial." Siers v. Weber, 259 F.3d 969, 974 (8th Cir. 2001). "In conducting this analysis, [the Court considers]: (1) the credibility of all witnesses, including the likely impeachment of the uncalled defense witnesses; (2) the interplay of the uncalled witnesses with the actual defense witnesses called; and (3) the strength of the evidence actually presented by the prosecution." Id. There is no prejudice if, factoring in the uncalled witnesses, the government's case remains overwhelming. Armstrong v. Kemna, 590 F.3d 592, 605 (8th Cir. 2010). Based on the overwhelming evidence of Pigg's guilt, none of the putative testimony Pigg now seeks to offer — even assuming it could and should have been admitted at trial — would have altered the jury's verdict.
Pigg has failed to satisfy his burden of showing that he suffered Strickland prejudice as a result of his trial counsel's alleged failure to conduct more investigation, to present other retaliation defenses or to call other witnesses in connection with the matters that comprise Claim 2. Accordingly, Claim 2 should be dismissed, with prejudice.
Pigg contends that his trial counsel was ineffective for failing to admit medical evidence to show that he suffers from erectile dysfunction. Pigg somehow believes this evidence would have supported his contention that he was incapable of engaging in some of the sexual acts the victims and witnesses described at trial.
During the trial, Pigg's attorney attempted to offer medical records to support Pigg's testimony that he had erectile dysfunction.
The Arkansas Supreme Court ruled that: (1) Pigg failed to establish either that his counsel's performance was deficient or that he suffered any prejudice as a result of the exclusion of this evidence; (2) Pigg failed to identify any argument his trial counsel could have made to overcome the State's hearsay objection to the admission of the records; (3) "the medical report would have been cumulative to Pigg's testimony"; and (4) Pigg failed to establish Strickland prejudice. Pigg II, 2016 Ark. 108, *7-9.
To prevail on his argument, Pigg must show that, in rejecting this ineffective assistance of counsel claim, the Arkansas Supreme Court unreasonably applied Strickland, or that its conclusion to reject this claim was based on an unreasonable determination of facts in light of the state court record. Because Pigg has failed to demonstrate any Strickland prejudice related to this claim, during either the guilt or sentencing phases, Claim 3 should be dismissed, with prejudice.
Pigg's sixteen year old niece, Meghan Pigg ("Meghan"), and his sister-in-law, Loral Jean Pigg ("Loral"), testified that Pigg molested Meghan and her younger sister, Danielle, when Meghan was eight or nine years old. Doc. 10-6, Tr. 957-959, 962-964. Pigg argues his counsel was ineffective for failing to suppress this testimony at trial or to move for a mistrial.
In fact, Pigg's trial counsel attempted, unsuccessfully, to keep this evidence out. Before trial, Pigg's trial counsel filed a Motion in Limine to exclude this "prior bad acts" testimony under Ark. R. Evid. 404(b). Doc. 10-3, Tr. 246-247. During a pre-trial hearing, the trial court overruled that motion, but required the prosecution to establish that an intimate relationship existed between Pigg and Meghan in order to bring the testimony of Meghan and Loral within Rule 404(b)'s pedophile exception.
At trial, the State laid the proper foundation for admitting the testimony under the pedophile exception. Loral testified that Meghan and Danielle were frequent visitors to Pigg's home,
Meghan testified that, when she was eight years old, she and Danielle visited Pigg's home on numerous occasions to go swimming. Id., Tr. 962. She testified that Pigg penetrated her digitally, under the guise of applying ointment to her vagina. Id. at 962-64. After Pigg attempted to do the same thing to Danielle, she told her mother, Loral, to protect her sister from further abuse by Pigg. Id. at 964.
In Pigg's Rule 37 proceeding, the Arkansas Supreme Court rejected Pigg's argument that his attorney provided ineffective assistance of counsel in failing to have this testimony suppressed under Ark. R. Evid. 404(b), or, failing that, to move for a mistrial: "[t]he trial court correctly found that Pigg did not identify any meritorious argument that counsel might have made to object to the Rule 404(b) evidence [from Meghan or Loral] or move for a mistrial."
In his habeas papers, Pigg points to the fact that his brother (Loral's husband) failed to testify regarding the abuse allegations, and no evidence was presented that Meghan's and Loral's allegations of sexual abuse were investigated by legal authorities.
Pigg has failed to satisfy his burden of showing that the Arkansas Supreme Court, in considering Claim 4, unreasonably applied Strickland, or that it based its decision on an unreasonable determination of facts in light of the state court record. Accordingly, Claim 4 should be dismissed, with prejudice.
Pigg argues that his trial counsel "allowed [the] prosecution to repeatedly induce prejudicial responses" and failed to object to the prosecutor's "improper leading and suggestive questions" and "improper vouching."
For example, Pigg complains that, during the prosecutor's opening statement, he made the following comment: "I'm going to walk you through what I think the evidence will show[;] What I think my witnesses will testify to[;] and [W]hy I think the defendant, here, is guilty of the offense of rape." Doc. 10-4, Tr. at 540 (emphasis added).
Pigg's arguments in support of Claim 6 fail to demonstrate that the allegedly deficient performance of his trial counsel even arguably impacted the jury's guilty verdict. Accordingly, because Pigg has failed to make a substantial showing of ineffective assistance of counsel, Martinez does not excuse Pigg's procedural default of Claim 6 and it should be dismissed, with prejudice.
Pigg argues his trial counsel was ineffective for failing to file a motion to suppress evidence seized from Pigg's cell phone, including multiple pictures of A.S., that were used against him at trial. The police seized Pigg's cell phone incident to his arrest, after which they applied for and received a search warrant authorizing the seizure of the content of Pigg's phone.
At trial, evidence was introduced of photos and video clips found on Pigg's phone.
Pigg argues the search and seizure of his cell phone violated his Fourth Amendment rights and that all evidence obtained from the search of his cell phone should have been suppressed. Doc. 17 at 69-70. He further argues that, once he was arrested, his cell phone should have been returned to him, and he faults the arresting officers for unlawfully removing his phone from his jacket pocket and holding it "to obtain a probable cause search warrant." Doc. 17 at 69-71.
Pigg's phone was seized incident to his lawful arrest. There is no suggestion that police searched the cell phone until after the warrant was issued. Under these circumstances, Pigg's only colorable legal argument is that the search warrant was issued without probable cause.
To save this claim from procedural default under Martinez, Pigg must demonstrate that this claim: (1) has "some merit"; and (2) is supported by at least some facts. Martinez, 566 U.S. at 14-16. "Where counsel's failure to competently litigate a suppression issue is the focus of the ineffective-assistance claim, to demonstrate prejudice, the petitioner must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence." Hogan v. Kelley, 826 F.3d 1025, 1028 (8th Cir. 2016), cert. denied, 138 S.Ct. 635 (2018) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (omitting internal quotations)). On both the performance and prejudice prongs, Pigg fails to present a substantial claim.
The Fourth Amendment favors searches conducted pursuant to a warrant, and far less judicial scrutiny applies to such searches. Ornelas v. U.S., 517 U.S. 690, 699 (1996) (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)).
Pigg offers no colorable legal argument that the search of his cell phone violated his Fourth Amendment rights. Pigg's reliance on Riley v. California, 134 S.Ct. 2473, 2495 (2014), is misplaced. Riley established, as a general rule, that police may not search digital information on a cell phone incident to arrest without a search warrant. Here, the police obtained a search warrant before searching Pigg's phone. Pigg asserts that the search warrant "was defective," but he fails to present any colorable argument to support this conclusory assertion.
Even if Pigg's trial counsel could have demonstrated that the cell phone evidence was obtained in violation of the Fourth Amendment, it is extremely unlikely it would have resulted in the suppression of the evidence. See Herring v. United States, 555 U.S. 135, 137, 141 (2009) ("We have repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation."). Evidence obtained in a search later found to be unconstitutional "should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." Illinois v. Krull, 480 U.S. 340, 348-49 (1987) (internal quotation marks and citations omitted); see also United States v. Leon, 468 U.S. 897 (1984) (holding Fourth Amendment exclusionary rule inapplicable to police officers who acted in objectively reasonable reliance on a search warrant lacking probable cause but which was issued by a neutral magistrate); Yancy v. State, 345 Ark. 103, 118-120 (2001) (applying the good faith exception to the exclusionary rule to a search warrant that violated Arkansas Rule of Criminal Procedure 13.1).
Pigg does not argue or present any supporting evidence that the police officer who later obtained the search warrant to examine the phone's contents knew that his actions were unconstitutional or that he took those actions in bad faith.
Pigg also fails to make a substantial showing of Strickland prejudice. Any contention that the outcome of the trial would have been different, but for introduction into evidence of the pictures and the video from his phone, is completely lacking in merit.
Pigg has failed to demonstrate either a meritorious Fourth Amendment claim or that the jury's verdict would have been different if the evidence from his cell phone had been suppressed. Accordingly, because Pigg has failed to demonstrate that Claim 7 is substantial, Martinez does not excuse Pigg's procedural default of that claim and it should be dismissed, with prejudice.
Pigg argues that his attorney should have moved to suppress his January 2012 interview with Detective Wear. During the trial, a videotape of that interview was played for the jury. Pigg voluntarily agreed to the interview, and he signed a form waiving his Miranda rights before the interview took place. Doc. 10-4, Tr. 602-603; Doc. 10-5, Tr. at 612 (Miranda form); Doc. 10-5, Tr. at 614-707 (transcript of interview).
In his habeas papers, Pigg does not deny that he validly waived his Miranda rights. Nor does he identify any valid legal basis for suppressing the interview. Obviously, Pigg's trial counsel cannot be faulted for not moving to suppress an interview Pigg agreed to give. See Bell v. Norris, 586 F.3d 624, 631 (8th Cir. 2009) (no Miranda violation because defendant waived rights verbally and in writing).
Because Claim 8 lacks any merit, Martinez does not excuse Pigg's procedural default of that claim. Accordingly, Claim 8 should be dismissed, with prejudice.
Although Pigg offers no argument, other than Martinez, to excuse his procedurally defaulted claims, the Court has considered, sua sponte, whether Pigg has demonstrated a "gateway actual innocence claim" that might excuse his procedural default. Even procedurally defaulted claims may be reviewed when a habeas petitioner comes forward with new evidence to support a claim of actual innocence. 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."); Nash v. Russell, 807 F.3d 892, 898 (8th Cir. 2015) (citing Schlup).
The United States Supreme Court has described "new reliable evidence," as "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324. The Eighth Circuit has further explained that "new evidence" is evidence that was not available at trial and could not have been discovered earlier through the exercise of due diligence. Nash, 807 F.3d at 899 (quoting Amrine, 238 F.3d at 1028) (citation omitted). Pigg has not presented any new evidence, that was unavailable to him through the exercise of reasonable diligence at trial, and that would establish his innocence.
All of Pigg's habeas claims either fail on the merits, or are procedurally defaulted. Accordingly, all of those claims should be dismissed, with prejudice.
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 ("COA") be DENIED pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases.
On direct appeal, a different attorney was appointed to represent Pigg.
Pigg did not appeal this ruling to the Arkansas Supreme Court. Thus, this claim is now procedurally defaulted. As discussed later, the Martinez exception does not apply and it cannot be used to save this claim from default. See discussion, infra at 15.
Doc. 10-10 at 113. Because Pigg failed to appeal this ruling, he may not rely on Martinez to save this claim from procedural default.
For purposes of § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Harrington, 562 U.S. at 101. "Surmounting Strickland's high bar [for evaluating ineffective-assistance claims] is never an easy task," and "[e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Id. at 105 (citations omitted). The standards created by Strickland and § 2254(d) "are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Id.
Ferris and Crowley were in jail with Smith. According to Pigg, they would also testify about Dalton Smith's jailhouse admissions that he "helped provoke" A.S. and others to "falsely accuse" Pigg. Id. This proposed testimony is almost identical to the affidavits of Ritchie, Hopewell, and Woods, all of which were considered and rejected by the trial court and Arkansas Supreme Court in denying Pigg Rule 37 relief. Doc. 10-13, Tr. at 370-373.
Arkansas law allows law enforcement to arrest a person without a warrant if there is reasonable suspicion to believe the person arrested has committed a felony. Ark. R. Crim. P. 4.1(a)(i) (2012). Here, the policy had ample "reasonable suspicion" to arrest Pigg for felony rape.
