Beavers v. Lockhart

• Decision Date: 25 February 1985
• Docket Number: No. 84-1044,84-1044
• Citation: 755 F.2d 657
• Parties: Burt BEAVERS, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 657

755 F.2d 657

Burt BEAVERS, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

No. 84-1044.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 14, 1984.

Decided Feb. 25, 1985.

Dan F. Bufford, Little Rock, Ark., for appellant.

Theodore Holder, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before BRIGHT, JOHN R. GIBSON, and FAGG, Circuit Judges.

BRIGHT, Circuit Judge.

Appellant Burt Beavers appeals from the district court's dismissal of his petition for a writ of habeas corpus. He asserts that the Arkansas Habitual Offenders Act, Ark.Stat.Ann. Secs. 41-1001 to -1005 (1977) (the "Act"), ¹ is unconstitutional and that the district court erred in dismissing his petition without holding an evidentiary hearing on his allegations that the Act was discriminatorily applied against him and that he received ineffective assistance of counsel. We vacate the judgment and remand the case to the district court to hold an evidentiary hearing to determine whether counsel rendered ineffective assistance by failing to challenge on direct appeal whether the state trial judge exercised the discretion given him by state law in imposing consecutive sentences.

I. BACKGROUND.

Beavers was charged with counts of aggravated robbery and kidnapping stemming from an incident in Pine Bluff, Arkansas on December 27, 1978. Because of his prior record, the State also charged him as a habitual offender and sought an enhanced sentence. Sentence enhancement under the Act requires a bifurcated trial. Ark.Stat.Ann. Sec. 41-1005 (1977). In the guilt determination phase, the jury convicted Beavers on both counts. In the second phase, the State introduced evidence of five prior felony convictions. The jury imposed a fifty-year sentence on each count, ² and the trial judge ordered the sentences to be served consecutively.

On direct appeal, Beavers' counsel filed a "no merit" brief with the Arkansas Supreme Court. The court affirmed the conviction, but noted that counsel had not satisfied the procedural requirements for filing a "no merit" appeal. Beavers v. State, 267 Ark. 154, 589 S.W.2d 572 (1979). Beavers then filed a petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. The Arkansas Supreme Court denied relief without holding an evidentiary hearing.

Beavers then filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas raising the same grounds for relief that he had presented in his Rule 37 petition. The court declined to hold an evidentiary hearing, or appoint counsel, and denied relief. Beavers appeals.

II. DISCUSSION.

A. Exhaustion of State Remedies.

As a preliminary matter, we note, sua sponte, that Beavers did not include in his Rule 37 petition before the Arkansas Supreme Court the allegations listed in points 4-7, infra part II(B), in support of his claim of ineffective assistance or the allegation that the Act was discriminatorily applied against him. See infra part II(C).

Ordinarily, the failure to present all grounds for relief to the state courts would require dismissal of the petition for failure to exhaust state remedies in light of 28 U.S.C. Sec. 2254(b) and Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). However, Rule 37.2(b) of the Arkansas Rules of Criminal Procedure requires a prisoner to include all grounds for relief in his original or amended petition, and explicitly provides that any grounds not raised in the original petition may not be raised in a subsequent petition. The Arkansas Supreme Court has recently taken the position that it will consider successive Rule 37 petitions only when the original petition was specifically denied without prejudice. Williams v. State, 273 Ark. 315, 619 S.W.2d 628, 629 (1981). Consequently, Beavers cannot now return to state court and present these allegations. This court has faced this situation before and has held, under analogous circumstances, that the petitioner had exhausted his state remedies. Knott v. Mabry, 671 F.2d 1208, 1210 (8th Cir.), cert. denied, 459 U.S. 851, 103 S.Ct. 115, 74 L.Ed.2d 101 (1982); Witham v. Mabry, 596 F.2d 293, 299 n. 7 (8th Cir.1979). Because Beavers has exhausted his state remedies, we may properly consider his arguments on the merits.

B. Ineffective Assistance of Counsel.

Beavers' primary argument in this appeal is that the district court erred in dismissing his petition without appointing counsel and holding an evidentiary hearing on his allegations that he received ineffective assistance of counsel. In support of his claim of ineffective assistance, Beavers points to numerous instances of alleged shortcomings by his appointed attorney in the pretrial and sentencing phases of the proceedings, and on direct appeal. Specifically, he contends that his attorney: (1) failed to prepare an adequate defense because he consulted with him only three times for a total of five hours prior to the trial, (2) failed to advise him of the consequences of his being charged under the Act, (3) failed, during the sentencing phase, to challenge the evidence of five previous felony convictions introduced by the State to establish his status as a habitual offender and thereby subject him to the possibility of an enhanced sentence under section 41-1001, (4) failed, on appeal, to satisfy the requirements in compiling the record for review and listing the arguable points for reversal as mandated for "no merit" appeals by Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), (5) failed, on appeal, to raise the trial court's denial of his motion for mistrial, (6) failed, on appeal, to argue that the prosecutor vindictively charged him as a habitual offender because he had declined to plead guilty, and (7) failed, on appeal, to challenge the trial court's imposition of consecutive sentences.

We must evaluate a claim of ineffective assistance of counsel under the two-part test recently announced by the Supreme Court in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel renders ineffective assistance only if his performance was deficient and the defendant suffered prejudice as a result of the deficient performance. Deficient performance requires a showing that counsel's assistance was not reasonable under prevailing professional norms in view of all the circumstances in a particular case. Prejudice requires a showing of a reasonable probability that, but for the deficient performance, the outcome would have been different. A defendant is not entitled to relief unless he makes the requisite showing on both components. Id. 104 S.Ct. at 2065-68. The Court has also recently held that a defendant's right to the effective assistance of counsel extends to his first appeal as of right as well as to trial proceedings. Evitts v. Lucey, --- U.S. ----, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). To require any less of counsel on appeal, the Court observed, would render "the promise of Douglas [v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) ] that a criminal defendant has a right to counsel on appeal * * * a futile gesture." --- U.S. at ----, 105 S.Ct. at 836-37.

A district court must grant an evidentiary hearing in a habeas corpus action if the petitioner did not receive a fair evidentiary hearing in state court, and his petition raises cognizable constitutional claims in which the relevant facts are either in dispute or insufficiently developed in the record to permit resolution. Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963); Speedy v. Wyrick, 702 F.2d 723, 726 (8th Cir.1983); Wallace v. Lockhart, 701 F.2d 719, 729-30 (8th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 340, 78 L.Ed.2d 308 (1983).

In this case, the district court considered Beavers' arguments that his attorney rendered ineffective assistance by failing to prepare an adequate defense, to advise him of the consequences of being charged as a habitual offender, and to assert on appeal that the prosecutor vindictively charged him as a habitual offender. These arguments lack merit and we agree with the reasoning of the district court rejecting them. Accordingly, the district court did not err in refusing to hold an evidentiary hearing, or grant habeas relief, on these grounds.

The district court also rejected Beavers' argument that he received ineffective assistance because his attorney failed to challenge the evidence of his previous felony convictions, finding that evidence to be admissible. The evidence of Beavers' prior convictions introduced by the State consisted of certified copies of the judgment and docket entries for Beavers' guilty pleas to burglary in 1975 and theft of property in 1977 and certified copies of docket entries reflecting that Beavers had pleaded guilty to burglary charges in 1968 and 1971 and to grand larceny in 1967.

The state bears the burden of proof in establishing a defendant's prior convictions when it seeks an enhanced sentence under the Arkansas Habitual Offenders Act. Leggins v. State, 267 Ark. 293, 590 S.W.2d 22, 23 (1979). The Act provides that a prior conviction may be established by any evidence that satisfies the fact-finder beyond a reasonable doubt that the defendant was convicted. Ark.Stat.Ann. Sec. 41-1003 (1977).

The evidence of the 1975 and 1977 convictions was properly admitted because Arkansas recognizes a certified copy of a judgment as proof of a prior conviction. Ark.Stat.Ann. Sec. 41-1003(1) (1977). Because those judgments indicated that Beavers had been represented by counsel, there were no apparent grounds upon which counsel could have challenged that evidence. Thus, the district court was correct in finding the evidence of these convictions admissible.

The certified copies of docket entries introduced by the State as proof of the 1967, 1968, and 1971...