Opinion
No. C99-2033
August, 2000
ORDER
This matter comes before the court pursuant to the defendant's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order dated July 21, 2000, this matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the petition be dismissed for procedural default.
PROCEDURAL BACKGROUND
Petitioner, Ronald Harris Brown, was tried jointly with Jay Hollins in the Iowa District Court for Black Hawk County on October 31, 1983. Both were convicted of first degree murder. Both convictions were affirmed by the Iowa Supreme Court on direct appeal. See State v. Brown, 397 N.W.2d 689 (Iowa 1986).
Seven years later, petitioner filed an action for post-conviction relief in the Iowa District Court for Black Hawk County alleging violations of his right to an impartial jury and his right to a jury from a cross section of the community. He also claimed ineffective assistance of counsel. Petitioner filed a second action for post conviction relief in the Iowa District Court for Black Hawk County in which he claimed that his access to post conviction relief was not barred by the state statute of limitations. The actions were consolidated. The district court dismissed both actions because petitioner failed to file them within the three-year statute of limitations. The Iowa Court of Appeals affirmed.See Brown v. State, 589 N.W.2d 273 (Iowa Ct.App. 1998).
Petitioner's petition for writ of habeas corpus claims his right to an impartial jury was violated and that he was denied effective assistance of trial and appellate counsel. The State argues the petition should be dismissed for procedural default.
FACTUAL BACKGROUND
Petitioner and Jay Hollins were jointly tried and convicted of first degree murder. During jury selection, one prospective juror, Thomas Schwartz, made statements regarding potential bias against petitioner and his co-defendant, Jay Hollins. Schwartz was not challenged for cause or removed by exercise of peremptory strikes. Petitioner did not raise any issues regarding juror bias on direct appeal.
During voir dire, the following exchange took place:
(Schwartz) A. I'd like to think I'm fair, but again, I'm a product of my environment. And you asked the question of somebody else about police officers. My answer on that would be I would place my credence on what they would say [more] than other people. I think in most cases they would be disinterested. It's a job. That's my opinion. I think I would be fair, but again, I have — I have opinions in those areas. And I have to say it directly, I'm — I'm not totally sure of how I react to one of the defendants who's black. I've had two or three very traumatic experiences in my life and there were blacks on the other end of that.
Q. Do you feel — and I realize this is hard — but you do feel that in this case because one of the defendants is black that you would have a hard time being a fair juror in regards to him despite your best efforts?
A. I would have some difficulty than — I would have some — I'll have some difficulty with that.
Because of pre-trial publicity, petitioner agreed a jury could be summoned from Dubuque County to Black Hawk County. Dubuque County has a lower percentage of African Americans in its population than Black Hawk County.
CONCLUSIONS OF LAW I. Procedural Default
Before seeking federal habeas corpus relief, petitioner must both exhaust state remedies and preserve his claim for review according to state procedural rules. McDonald v. Bowersox, 101 F.3d 588, 598 (8th Cir. 1996). A state court decision denying post-conviction relief which rests upon adequate and independent procedural grounds will bar federal habeas corpus review. See Harris v. Reed, 489 U.S. 255, 263 (1989). To overcome this bar, the petitioner must show cause for the procedural default and prejudice attributable thereto in order to obtain review of the defaulted constitutional claim. Wainwright v. Sykes, 433. U.S. 72 (1977).
The state court failed to reach the merits of petitioner's state application for post-conviction relief. The court dismissed the application because it was barred by the state statute of limitations under Iowa Code § 822.3 (1997). See Brown v. State, 589 N.W.2d 273. Thus, petitioner must show cause for the procedural default and resulting prejudice from the default.
A. Impartial Jury Claims
Petitioner claims his right to an impartial jury was violated. First, petitioner claims the procedural default should be excused because he was denied access to the voir dire transcripts. Petitioner, however, was present during the voir dire of juror Schwartz. See Forest v. Delo, 52 F.3d 716, 719-20 (8th Cir. 1995) (finding petitioner's presence at trial was sufficient for him to know factual basis of federal habeas claim). No evidence suggests that denial of a transcript of the proceeding resulted in petitioner being unaware of any claims he could have raised in post-conviction relief proceedings. Id.; Umphfrey v. Groose, No. 97-1692WM, 1997 WL 791656 (8th Cir. 1997) (per curiam).
Second, petitioner alleges the procedural default should be excused because he had no access to Iowa statutes and cases while incarcerated in New Mexico. Petitioner relies on Dulin v. Cook, 957 F.2d 758 (10th Cir. 1992), to support this claim. In Dulin, the district court ruled the petitioner's habeas corpus claim was barred because he failed to exhaust state remedies and thus his claims had procedurally defaulted. Id. at 758. The Tenth Circuit Court of Appeals remanded the petition in order to allow the petitioner the opportunity to prove that he could meet the cause and prejudice standard by showing that he did not, in fact, have access to the state's appellate rules. Id. at 760. However, the court further stated: "We stress that we are not deciding that `cause' actually exists in this case." Id.
In Lewis v. Casey, the Supreme Court stated that, in order to have an actionable lack-of-access to a prison library claim, the inmate must show that the claim in "which he desired to bring has been lost or rejected, or that the presentation of such a claim is currently being prevented, because this capability of filing suit has not been provided." Lewis v. Casey, 518 U.S. 343, 356 (1996). Lewis was a federal civil rights claim. This standard, however, has been applied to determine cause for petitioners seeking federal habeas relief. See Lamp v. Iowa, 122 F.3d 1100, 1105 (8th Cir. 1997).
Petitioner has failed to meet the Lewis standard. Petitioner filed an affidavit stating that the law library in the penitentiary in which petitioner was incarcerated did not contain Iowa statutes or case law. See Petitioner's Exhibit 2. Petitioner, however, must do more than merely show a lack of access at the law library. UnderLewis, he
must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. He might show, for example, that . . . he suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.Id. at 351. Petitioner has not demonstrated that he suffered any harm from a lack of access to Iowa statutes that would constitute cause for failing for comply with the state procedural rules. Petitioner has merely shown that the prison library did not contain the Iowa statutes; he has not offered any evidence that prison officials hindered his efforts to obtain copies of the Iowa statutes.
What must be remembered here is that the State Post-Conviction Relief action was dismissed for failure to file it within three years. The lack of an Iowa Code cannot be an excuse for failing to commence an action within eleven years. Access to law books could have revealed the three-year limitations period, if petitioner read the appropriate section. However, the lack of law books did not hinder petitioner from filing a complaint. The fact that petitioner waited more than a decade to do so shows that petitioner made no serious effort to determine his responsibility to file timely.
Following the remand, Dulin v. Cook was again appealed to the Tenth Circuit. In an unpublished disposition, the Tenth Circuit affirmed the dismissal of the petition because the petitioner merely alleged he did not have access to state laws and because he "failed to avail himself of every reasonable means by which to familiarize himself with [state] appellate rules." Dulin v. Cook, 1993 WL 12673 (10th Cir. 1993). Similarly, petitioner's lack of access to state statutes and material are not sufficient cause to excuse his procedural default.
B. Ineffective Assistance of Counsel Claim
Petitioner claims he was denied effective assistance of counsel because his attorney failed to strike juror Schwartz and because his counsel failed to object to the empaneling of a jury summoned from a neighboring county with a lower racial composition of blacks. In Edwards v. Carpenter, the Supreme Court addressed the issue of whether an ineffective assistance of counsel claim can itself be procedurally defaulted. Edwards v. Carpenter, ___ U.S. ___, 120 S.Ct. 1587 (2000). Ineffective assistance of counsel can be cause for a procedural default if it rises to the level of an independent constitutional violation. Id. at 1591 (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)); Coleman v. Thompson, 501 U.S. 722, 755 (1991). The claim for ineffective assistance of counsel, however, must be properly submitted to the state court. The purpose of this rule is to allow the state court to review the merits of the claim. Edwards v. Carpenter, 120 S.Ct. at 1592. InEdwards, the Court held that the ineffective assistance of counsel claim is procedurally defaulted if it is not presented to the state court in the manner required by the state procedural rules. Id. at 1591-92. Therefore, petitioner has not met the "cause" standard to avoid procedural default.
Petitioner failed to file his application for state post-conviction relief before Iowa's three-year statute of limitations expired. The state court did not address petitioner's claim on the merits before it was dismissed. Petitioner's claim for ineffective assistance of counsel is therefore procedurally defaulted.
In Edwards, the Court went on to state that a procedurally defaulted ineffective-assistance-of-counsel claim may "itself be excused if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim." Id. at 1592. That is, if petitioner can show cause for failing to raise his ineffective-assistance-of-counsel claim before it procedurally defaulted, the federal habeas court can review the claim. Petitioner did not raise the ineffective assistance of counsel claim on direct appeal, and the merits of the claim were not reviewed because the state post-conviction relief application was procedurally barred. Petitioner did not have a constitutional right to an attorney in post-conviction proceedings. See Coleman v. Thompson, 501 U.S. at 752. Petitioner, therefore, "bear[s] the risk of attorney error that results in a procedural default." Id. at 752-53.
All petitioner has established is that juror Schwartz revealed a potential bias during voir dire. Petitioner was present during voir dire and during trial and thus cannot claim he lacked knowledge of a potential claim. Petitioner has not alleged additional facts constituting cause for his failure to raise his claim in a timely manner before the state court. Thus, petitioner has not shown cause to overcome the procedural default of his ineffective assistance of counsel claim.
Because petitioner has not been able to show cause for failing to properly bring his ineffective assistance of counsel claim before the state court, it is unnecessary to determine whether he suffered prejudice. Wyldes v. Hundley, 69 F.3d 247, 253-43 (8th Cir. 1995). Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, petitioner's request for writ of habeas corpus be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections must also specify the parts of the record, including exhibits and transcripts lines, which form the basis for such objections. See Fed R. Civ. P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).