Bell v. Norris
| Decision Date | 18 September 2007 |
| Docket Number | No. 5:05CV00084 JMM.,5:05CV00084 JMM. |
| Citation | 628 F.Supp.2d 1001 |
| Parties | Albert BELL ADC # 104487 Petitioner v. Larry NORRIS, Director, Arkansas Department of Correction Respondent |
| Court | U.S. District Court — Eastern District of Arkansas |
Albert Bell, Grady, AR, pro se.
Kelly K. Hill, Arkansas Attorney General's Office, Little Rock, AR, for Respondent.
The Court has reviewed the Proposed Findings and Recommended Disposition received from Magistrate Judge Jerry Cavaneau and the objections filed in response, and has further reviewed the relevant record de novo. The Findings and Recommendations are adopted in their entirety as this Court's findings.
Accordingly, judgment shall be entered dismissing this 28 U.S.C. § 2254 petition for writ of habeas corpus in its entirety, with prejudice.
IT IS SO ORDERED.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION INSTRUCTIONS
The following recommended disposition has been sent to United States District Court Judge James M. Moody. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and two copies of your objections must be received in the office of the United States District Court Clerk no later than eleven (11) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Clerk, United States District Court
Eastern District of Arkansas
600 West Capitol Avenue, Suite 402
Little Rock, AR 72201-3325
Albert Bell, an Arkansas Department of Correction inmate, brings this 28 U.S.C. § 2254 petition for writ of habeas corpus (docket entry # 2). Respondent concedes (docket entry # 12) that Petitioner is in his custody, see id. § 2254(a), but asserts that the petition should be dismissed for several reasons. Petitioner has replied (docket entries # 15, # 20). For the reasons that follow, the petition should be dismissed in its entirety.
According to statements given to police, Petitioner and Terry Sims entered Cloud's Grocery Store in Casscoe, Arkansas, on December 15, 1992. Sims returned a movie while Petitioner asked employee Julian Russell if he had any fuses. While Russell was looking for fuses, Sims shot him approximately five times. Another employee, Mary Lou Jones, began screaming and, after Petitioner got the money from the cash register, Sims shot Jones twice. Petitioner and Sims then went to Sims' car and drove to a friend's house.
Petitioner and Sims were both charged with capital murder for the deaths of Russell and Jones. (Resp't Ex. 1, at 1.)1 Petitioner, who was sixteen at the time of the offense, filed a motion to transfer his case from the Arkansas County Circuit Court to juvenile court. The circuit court held an evidentiary hearing, then entered an order denying transfer. (Id. at 4, 215-262.) Petitioner took an interlocutory appeal to the Arkansas Supreme Court, which affirmed the denial. Bell v. State, 317 Ark. 289, 877 S.W.2d 579 (1994) (Bell I).
Petitioner's case proceeded in the circuit court where, in September 1994, he was tried before a jury on the charges. He was convicted of two counts of first-degree murder and sentenced to two consecutive life sentences. (Resp't Ex. 1, at 205.) He appealed, and the Arkansas Supreme Court remanded the case for a new suppression hearing with regard to Petitioner's custodial statements because a material witness was not present at the pretrial hearing held in the circuit court. Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996) (Bell II). On remand, the circuit court granted Petitioner's motion to suppress and ordered a new trial. This time, the state appealed, and the Arkansas Supreme Court reversed, holding that the circuit court erred in suppressing Petitioner's statement and, therefore, affirming his convictions and sentences. State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997) (Bell III).2
On August 27, 1997, Petitioner filed a timely petition for state post-conviction relief pursuant to Ark. R.Crim. P. 37, which he later amended. (Resp't Ex. 6,3 at 7-23, 142-67.) After an evidentiary hearing, the circuit court denied relief. State v. Bell, No. CR-1993-4 (Ark.Co.Cir.Ct. Mar. 6, 2002) (Resp't Ex. 6, at 249-52). Petitioner filed a notice of appeal (Resp't Ex. 6, at 259), but failed to tender the lower court record within ninety days as required by the applicable appellate rules. Ark. R.App. P.-Crim. 4(a); Ark. R.App. P.-Civ. 5(a) (2002). He filed a motion for rule on the clerk to lodge the record belatedly, which was granted. Bell v. State, 350 Ark. 454, 88 S.W.3d 425 (2002). On May 13, 2004, the Arkansas Supreme Court affirmed the denial of post-conviction relief, rejecting Petitioner's claims on the merits. Bell v. State, No. CR 02-1071, 2004 WL 1068724 (unpub.op.) (Bell IV). There is no evidence or allegation that he sought any further relief in state court.
Petitioner now brings this federal habeas petition, advancing the following claims:
1. The Arkansas Supreme Court's decision finding the Arkansas Juvenile Code inapplicable was unreasonable in light of the evidence presented in the state court proceedings;
2. The Arkansas Supreme Court's decision finding that Petitioner knowingly and intelligently waived his Miranda4 rights and his Fifth and Sixth Amendment rights was contrary to or involved an unreasonable application of clearly established federal law;
3. The Arkansas Supreme Court's decision finding that counsel was not ineffective for failing to make certain arguments in support of suppression of Petitioner's statements, was contrary to or involved an unreasonable application of clearly established federal law, and was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings;
4. The Arkansas Supreme Court's decision that counsel was not ineffective for failing to object to the responses given by three jurors when polled about their verdict, was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings; and
5. The Arkansas Supreme Court's decision that counsel was not ineffective for waiving Petitioner's statutory right to have the jury's questions addressed by the trial judge in the courtroom, was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Respondent asserts that the petition should be dismissed for several reasons: (1) as barred by the one-year statute of limitations for federal habeas petitions as set forth in 28 U.S.C. § 2244(d); (2) as presenting in Ground 1 a claim that is procedurally defaulted because Petitioner failed to fairly present it to the state courts; (3) as presenting only a question of state law in Ground 1; and (4) with respect to Grounds 2, 3, 4 and 5, as failing to demonstrate entitlement to federal habeas relief under the statutes requiring deferential review of state court decisions.
Respondent first contends that the entire petition is time-barred under 28 U.S.C. § 2244(d)(1), which requires that a federal habeas petition be filed within one year of the date upon which a state judgment of conviction became final. Petitioner's convictions became final in October 1997, and he filed this petition more than seven years later, in March 2005. See Curtiss v. Mount Pleasant Corr. Facility, 338 F.3d 851, 853 (8th Cir.2003) (). However, the time during which a properly filed state post-conviction proceeding is pending does not count toward the one-year limitations period. 28 U.S.C. § 2244(d)(2). Petitioner was involved in state post-conviction proceedings from August 27, 1997, to May 13, 2004. Whether the federal statute of limitations was tolled during that entire period raises some complicated questions, for which there is no clear answer in the statute or in current case law. See Lewis v. Norris, 454 F.3d 778, 779-80 (8th Cir.) (), cert. denied, ___ U.S. ___, 127 S.Ct. 515, 166 L.Ed.2d 384 (2006); Collier v. Norris, 402 F.Supp.2d 1026, 1030-31 (E.D.Ark.2005) (...
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