Bragg v. Norris

• Decision Date: 08 December 2000
• Docket Number: No. 5:98CV00540JFF.,5:98CV00540JFF.
• Citation: 128 F.Supp.2d 587
• Parties: Rodney BRAGG, Petitioner v. Larry NORRIS, Director, Arkansas Department of Correction, Respondent
• Court: U.S. District Court — Eastern District of Arkansas

128 F.Supp.2d 587

Rodney BRAGG, Petitioner v. Larry NORRIS, Director, Arkansas Department of Correction, Respondent

No. 5:98CV00540JFF.

United States District Court, E.D. Arkansas, Pine Bluff Division.

December 8, 2000.

COPYRIGHT MATERIAL OMITTED

Rodney Bragg, Grady, AR, Pro se.

Patrick J. Benca, Hampton, Larkowski & Benca, J. Thomas Sullivan, Little Rock, AR, for Petitioner.

Orville Milton Fine, II, Arkansas Attorney General's Office, Little Rock, AR, Teena L. Watkins, Arkansas Govenor's Office, Little Rock, AR, for Respondent.

MEMORANDUM AND ORDER

FORSTER, United States Magistrate Judge.

I. PROCEDURAL HISTORY

On January 19, 1996, petitioner was convicted of delivery of a controlled substance in the Nevada County Circuit Court. The jury sentenced petitioner to life imprisonment in the Arkansas Department of Correction.

Petitioner filed a direct appeal in the Arkansas Supreme Court alleging the following grounds for relief:

(1) the jury venire was not representative of a fair cross-section of the community with regard to black Americans; and

(2) the State improperly excluded three black Americans from the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and

(3) the trial court erred in not excluding testimony concerning an alleged drug transaction that occurred in 1994 in Clark County; and

(4) the trial court erred by allowing hearsay statements into evidence; and

(5) petitioner's conviction was not supported by sufficient evidence.

Finding no error, the Court affirmed petitioner's conviction. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997).

On July 21, 1997, petitioner, proceeding pro se, filed a petition in circuit court for post-conviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure alleging the following grounds for relief:

(1) counsel was ineffective for failing to challenge the insufficiency of the evidence and preserve same for appellate review;

(2) counsel was ineffective for failing to challenge the evidence admitted at trial as being the drug which was allegedly bought from petitioner;

(3) counsel was ineffective for failing to subpoena John Nolan as a witness on petitioner's behalf;

(4) counsel was ineffective for failing to object to the admissibility of evidence introduced by the prosecution of prior arrest under Ark.R.Evid. 403;

(5) counsel was ineffective in failing to request a cautionary instruction and/or admonition to the jury; and

(6) the sentence received constitutes cruel and unusual punishment.

On September 16, 1997, the circuit court denied Bragg's petition. On September 19, 1997, petitioner wrote the Clerk of Nevada County Circuit Court requesting "a certified copy of the record designated on appeal in this Rule 37 action." He further stated that he had been allowed leave to proceed in forma pauperis. On September 24, 1997, petitioner filed a timely notice of appeal from the circuit court's order. In the notice, he designated the entire record of the Rule 37 proceedings and stated that he had ordered a certified copy of said records from the Circuit Court Clerk of Nevada County, Arkansas. On the same day, he filed a motion for court order directing the Clerk to furnish him, free of cost, with a certified copy of record designated on appeal. On October 1, 1997, the circuit court granted the motion, finding that Mr. Bragg should be provided a copy of the record at no cost.

On December 2, 1997, petitioner wrote the Circuit Court Clerk, asking her to advise him if the records had been tendered to the Arkansas Supreme Court and to give him an estimated date that the records would be completed so that the proper measures would be taken to insure timely filing with the Arkansas Supreme Court. On December 15, 1997, petitioner wrote the circuit judge. He stated that the Clerk did reply to his December 2, 1997, letter by mailing to him certified copies of some parts of the Rule 37 record, but none of the pertinent questions were answered. He stated that he had therefore filed a motion for extension of time for the purpose of appeal. On December 19, 1997, petitioner filed a motion in the trial court for extension of time to lodge the record.

The record was not tendered to the Arkansas Supreme Court until January 22, 1998, which was 120 days after the notice of appeal was filed, and the Clerk of the Arkansas Supreme Court declined to lodge the record. Ark.R.App.P.5(a) requires a record to be tendered within ninety days of the notice of appeal. Petitioner filed a motion for rule on clerk, seeking to belatedly file the record. The Arkansas Supreme Court denied the motion for rule on clerk, finding that petitioner did not demonstrate good cause for failing to conform with the proper procedure. In so finding, the Court noted that petitioner, on December 19, 1997, had filed a motion in the trial court for extension of time to lodge the record, and that the ninety day period to file the record elapsed on December 23, 1997. The Supreme Court found that the motion for extension apparently was not acted on by the trial court. The Court found that it was the duty of the petitioner to obtain action on the motion for extension of time or tender the record to the Supreme Court by December 23, 1997. Bragg v. State, CR 98-341 (Ark.Sup.Ct. May 21, 1998)(unpublished).

On December 4, 1998, petitioner filed his initial petition for writ of habeas corpus in this court, (docket entry # 2), raising the following claims for relief:

(1) he was denied effective assistance of counsel because counsel failed to interview or call two witnesses whose testimony would have exonerated petitioner and failed to secure documentary evidence that would have exonerated petitioner;

(2) his conviction was obtained by the unconstitutional failure of the prosecution to disclose evidence favorable to petitioner; and

(3) the sentence imposed on petitioner constitutes cruel and unusual punishment in violation of the Eighth Amendment.

Respondent, in his response filed December 31, 1998, argued that petitioner's claims were procedurally defaulted because he had failed to properly raise the claims in the state proceedings. (Docket entry # 6) The court reviewed Mr. Bragg's petition and the respondent's response and, on January 11, 1999, ordered petitioner to provide a written statement describing the circumstances leading to his failure to obtain rulings on the grounds now procedurally barred. (Docket entry # 7)

Petitioner filed a detailed response citing very specific facts showing discrepancies in the testimony at trial. (Docket entry # 8) Additionally, petitioner's statements suggested that his attempt to timely appeal the Circuit Court's denial of his Rule 37 petition was impeded. Given petitioner's allegations supported by concrete evidence, the court ordered the respondent to file the trial transcript and records pertaining to petitioner's Rule 37 petition. (Docket entry # 10)

Respondent rapidly complied with the court's order and filed the required documents on April 28, 1999. (Docket entry # 12) Upon review of the transcript and records, the court found sufficient cause to appoint petitioner counsel. (Docket entry # 14)

On March 6, 2000, petitioner, assisted by counsel, filed an amended petition for writ of habeas corpus, (docket entry # 18), raising the following claims for relief:

(1) prosecutorial misconduct for reliance on perjured or false testimony;

(2) ineffective assistance of counsel; and

(3) the state failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In his amended petition, Mr. Bragg moved the court for an evidentiary hearing on these claims. Respondent, in his response filed April 10, 2000, again argued that petitioner's claims were procedurally defaulted because he had failed to properly raise the claims in the state proceedings. (Docket entry # 21)

After carefully reviewing petitioner's claims, the supporting evidence, and respondent's response¹, the court found that an evidentiary hearing was necessary in this case. (Docket entry # 22); 28 U.S.C. § 2254(e)(2); Townsend v. Sain, 372 U.S. 293, 311, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963)(overruled in part, Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992)); Clemmons v. Delo, 124 F.3d 944, 952 (8th Cir.1997) (Townsend still the law with regard to a district court retaining power to hold a hearing even though one was not required); see also United States ex rel. Maxwell v. Gilmore, 37 F.Supp.2d 1078, 1090 (N.D.Ill.1999)(AEDPA restricts federal habeas court to hold evidentiary hearing when petitioner failed to develop facts in state court, but general discretion lies with district court judges whether to hold hearing).

On November 14-15, 2000, the court held an evidentiary hearing at the United States Courthouse in Texarkana, Arkansas. The court moved the venue to Texarkana to accommodate the witnesses who were mostly located in Clark and Nevada Counties. The court took testimony from fifteen witnesses and received 48 exhibits.

II. EVIDENCE SUPPORTING BRAGG'S CONVICTION

A. Trial Summary.

The Arkansas Supreme Court summarized the evidence at trial as follows:

The testimony presented at trial reveals the following facts. On March 26, 1993, Agent Keith Ray, an undercover officer for the South Central Drug Task Force, and Mark Smith [sic], a confidential informant, went to the residence of John Noland [sic] in Prescott for the purpose of purchasing cocaine. Agent Ray told Noland [sic] that he wanted to buy $50 worth of crack cocaine and Noland [sic] indicated that he had someone there who could help him. Noland [sic] then led Agent Ray to the kitchen door, where he instructed Ray to wait. Agent Ray observed three men sitting at the kitchen table with a large amount of what appeared to be crack cocaine. After Noland [sic] had spoken to one of them, that man got up...