Urquhart v. Lockhart
| Decision Date | 22 March 1984 |
| Docket Number | No. 83-1480-EA,83-1480-EA |
| Citation | 726 F.2d 1316 |
| Parties | Curtis W. URQUHART, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Laura A. Hensley, Little Rock, Ark., for appellant.
Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, Ark., for appellee.
Before LAY, Chief Judge, FAGG, Circuit Judge, and HUNTER, Senior District Judge. *
Arkansas state prisoner, Curtis W. Urquhart, appeals from the district court's denial of his petition for a writ of habeas corpus. For the reasons stated below, we affirm the judgment of the district court.
On September 30, 1980, a jury convicted Curtis W. Urquhart of rape and burglary. He was sentenced to 40 years' imprisonment on the rape conviction and 15 years' imprisonment on the burglary conviction, the sentences to run consecutively. Urquhart unsuccessfully appealed the convictions. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). Urquhart subsequently filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Arkansas, but that petition was dismissed for failure to exhaust available state remedies.
On March 22, 1982, Urquhart filed a petition in the Arkansas Supreme Court for permission to proceed pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. The petition was denied in a per curiam opinion delivered on April 12, 1982. Urquhart then attempted to file a second Rule 37 petition on April 28, 1982, but the petition was not considered by the Arkansas court pursuant to Rule 37.2(b), which requires that all grounds must be raised in the original petition.
Urquhart then filed a petition, pro se, for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas, alleging eleven grounds in support of the relief sought. The district court, adopting a magistrate's recommended opinion, denied relief and dismissed the petition without an evidentiary hearing, Urquhart v. Lockhart, 557 F.Supp. 1334 (E.D.Ark.1983). Urquhart, with the aid of appointed counsel, appeals the district court's dismissal of his petition.
I. Urquhart claims that the use of hearsay testimony by the prosecutor violated his fourteenth amendment right to due process. The victim of the crimes the appellant was convicted of having committed was deaf and mute, and communicated by using sign language. A friend of hers, Barbara Foot, translated the victim's story to police, both at the hospital and later at the victim's apartment. At trial, a police officer was permitted to testify concerning statements made to him by the victim through Mrs. Foot.
As a starting point, we note that questions concerning the admissibility of evidence are matters of state law and are not reviewable in a federal habeas corpus proceeding unless the asserted error infringed a specific constitutional protection or was so prejudicial as to deny due process. Wallace v. Lockhart, 701 F.2d 719, 724 (8th Cir.1983). Urquhart challenges as fundamentally unfair the fact that the officer testified that he took pictures of the door that the victim had told him had been forced open, that he testified concerning his inspection of the scene of the crime, and that he related the victim's description of her assailant to the jury. The Arkansas Supreme Court held the admission of some of this testimony to have been error, but of a harmless nature "because the only material facts the witness related beyond the fact she reported she had been raped, was her description of the assailant, a matter that was not in issue." Urquhart v. State, 273 Ark. 486, 488, 621 S.W.2d 218, 219 (1981).
Urquhart admits that the identity and description of the assailant was not in dispute since his defense to the charge was consent. Nonetheless, he argues that the effect of the testimony was to bolster and corroborate the testimony of the victim as to how the rape occurred. The evidence corroborating the victim's testimony as to how the rape occurred was the officer's description of his inspection of the scene of the crime. Testimony of such first hand knowledge does not appear to be objectionable as hearsay. The admission of the challenged testimony, if it was error, did not infringe a specific constitutional right and was not so prejudicial as to deny Urquhart due process. A consideration of the challenged evidence in its entirety does not present a question of constitutional dimension to provide a basis for habeas corpus relief.
II. At trial, a friend of the victim served as interpreter when the victim testified. Urquhart contends now that an independent impartial interpreter should have been appointed for his benefit, and failure to do so violated his right to be confronted by a witness against him. The record indicates that no objection to the use of the particular interpreter was raised at trial, and that the Arkansas court refused to consider the question in post conviction proceedings due to the defendant's failure to make a timely objection. Where a petitioner fails to comply with state procedural rules and the state relies on that non-compliance in dismissing the issue, federal courts are precluded from considering the question unless the petitioner can demonstrate cause for the non-compliance and resultant prejudice. Engle v. Issac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982); Wallace v. Lockhart, 701 F.2d 719, 726 (8th Cir.1983). Urquhart alleged neither cause nor resultant prejudice in his pro se petition in the district court. On appeal with court appointed counsel Urquhart admits that a showing of cause and prejudice can not be made. The district court correctly dismissed this issue without an evidentiary hearing.
III. Urquhart contends that he was denied effective assistance of counsel at trial and on direct appeal. In the district court Urquhart claimed his attorney was incompetent in that (1) this was the attorney's first "case of this nature"; (2) the attorney did not know sign language; (3) the attorney failed to include all the...
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