Buckley v. Lockhart, 88-2813

• Decision Date: 20 December 1989
• Docket Number: No. 88-2813,88-2813
• Citation: 892 F.2d 715
• Parties: Eddie Joe BUCKLEY, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 715

892 F.2d 715

Eddie Joe BUCKLEY, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee.

No. 88-2813.

United States Court of Appeals,

Eighth Circuit.

Submitted June 12, 1989.

Decided Dec. 20, 1989.

James R. Pender, Little Rock, Ark., for appellant.

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

Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge and HANSON, ^* Senior District Judge.

BEAM, Circuit Judge.

Eddie Joe Buckley appeals from a decision of the district court dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1982). We affirm.

I. BACKGROUND

Buckley was arrested at the age of nineteen for burglary and theft of jewelry valued at $75,000 from a Best Merchandise store. On June 23, 1983, he was convicted on both counts by a jury. The jury assessed punishment of twenty years for each count, and the judge, immediately after the verdicts were returned and the jury dismissed, imposed the sentences to run consecutively. Trial Transcript, vol. 2 at 296. At the same time, the judge also advised Buckley of his right to appeal; Buckley's only question was about credit for jail time already served. Trial Transcript, vol. 2 at 296-97. The next day, June 24, 1983, Buckley escaped from custody and remained at large throughout his appeal period. He was apprehended and committed to the Arkansas Department of Corrections on October 30, 1984.

Buckley has since filed an array of motions for post-conviction relief. He first filed, on July 15, 1985, a pro se petition pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. The petition contained both a conclusory allegation of ineffective assistance of counsel at paragraph 19, Designated Clerk's Record at 100, and a more elaborate allegation of ineffective assistance in the argument and conclusion section. Id. at 101. While the precise grounds for the allegation were not clear, ¹ the court found that Buckley alleged two claims for relief: ineffective assistance and double jeopardy. Designated Clerk's Record at 119. The court dismissed this petition on April 15, 1986, finding no merit in the double jeopardy allegation and that "the mere conclusiory (sic) allegation of ineffective assistance of counsel is without merit and entitles petitioner to no relief." Id.

Buckley filed a second petition, styled a Writ of Error Coram Nobis, on July 1, 1986. In this petition he alleged ineffective assistance of counsel based on counsel's failure to object to a juror for cause, for failure to procure alibi witnesses, and for failure to perfect an appeal. Id. at 123-24. The petition also stated that counsel had refused to appeal "since the judge stated that petitioner could not appeal." Id. at 127. In addition, the petition alleged improper use of a coerced confession, prosecutorial misconduct for threatening witnesses, denial of a fair and impartial trial, of due process and of equal protection, and abuse of discretion. Id. at 125-27. The court dismissed this petition on November 10, 1986, finding that Arkansas Rule of Criminal Procedure 37.2 ² requires that all grounds for relief be raised in the original petition, and that "[d]efendant's second petition alleges essentially the same grounds and seeks the same relief as did his first petition." Id. at 137.

On February 6, 1986, Buckley filed the first of his federal habeas corpus petitions, alleging that counsel failed to perfect an appeal and improperly excused himself. Id. at 4. Upon the state's motion to dismiss, the district court ruled that Buckley Buckley filed an amended petition on January 12, 1987, alleging the following grounds: denial of effective assistance of counsel, use of a coerced confession, prosecutorial misconduct, denial of a fair and impartial trial, denial of due process and equal protection, abuse of discretion and denial of the right to appeal. Id. at 56. Buckley was appointed counsel on October 30, 1987, and filed a second amended petition on September 19, 1988, alleging ineffective assistance of counsel for failure to object to a juror for cause and for failure to move for a continuance to obtain alibi witnesses, use of an involuntary confession, and prosecutorial misconduct. Id. at 150-52. A United States Magistrate dismissed this petition on October 28, 1988, since "none of the grounds presently being put forth by petitioner have been fairly presented to the state courts," Id. at 190, and since petitioner could not show adequate cause for failing to present these grounds to the state courts. Id. at 191. This appeal followed.

                had exhausted his state remedies.   The court refused to dismiss and granted leave to amend.   Id. at 51-52
                

II. DISCUSSION

In considering the dismissal of Buckley's petition on procedural grounds, it is important to note both the deference federal courts give to state courts in reviewing motions for collateral relief and the importance of state procedural rules. In Engle v. Isaac, 456 U.S. 107, 127-28, 102 S.Ct. 1558, 1571-72, 71 L.Ed.2d 783 (1982), the Supreme Court discussed the costs of collateral review, emphasizing that the writ of habeas corpus undermines the finality of litigation, detracts from the prominence of the trial and its safeguards for the accused and frustrates society's interest in punishment. The writ also imposes special costs on the federal system, since the states not only possess primary authority for enforcing the criminal law, but also "hold the initial responsibility for vindicating constitutional rights." Id. at 128, 102 S.Ct. at 1572. Moreover, the Supreme Court has stressed the importance of state procedural rules and their relationship to these state interests, noting that "procedural rules serve vital purposes at trial, on appeal, and on state collateral attack." Murray v. Carrier, 477 U.S. 478, 490, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986).

These considerations underlie the framework used by the Eighth Circuit in its review of habeas corpus claims. A federal court can consider the merits of a habeas corpus petition only when the prisoner has " 'fairly presented' to the state courts the 'substance' of his [or her] federal habeas corpus claim." Martin v. Solem, 801 F.2d 324, 330 (8th Cir.1986) (quoting Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) and citing Picard v. Connor, 404 U.S. 270, 276-78, 92 S.Ct. 509, 512-14, 30 L.Ed.2d 438 (1971)). If the federal claim has not been presented to the state courts, it is procedurally barred in federal court and must be dismissed, unless the prisoner can show both adequate cause to excuse his failure to raise the claim in state court and actual prejudice resulting from failure to address the merits in federal court. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). Given a procedural default and no showing of cause and prejudice, the habeas corpus petition must be dismissed. ³

A. Procedural Default

Buckley's first petition filed in state court alleged ineffective assistance and double jeopardy. Because of Arkansas Rule of Criminal Procedure 37.2(b), the federal court can consider only those claims found in this first petition. The state circuit court dismissed the allegation of ineffective assistance as a "mere conclusiory (sic) allegation," entitling petitioner to no Buckley's initial ineffective assistance claim, supra note 1, does not resemble the more specific claims of ineffective assistance alleged in his second amended habeas petition. The United States Supreme Court has held in Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1972) that, to be fairly presented, "the substance of a federal habeas corpus claim must first be presented to the state courts." In Picard, for example, "[t]he claim that an indictment is invalid is not the substantial equivalent of a claim that it results in an unconstitutional discrimination." Id. at 278, 92 S.Ct. at 513. Beyond the conclusory language of "ineffective assistance," the same facts and legal theories are not at issue in Buckley's various petitions. For instance, Buckley's second amended habeas petition alleges ineffective assistance based on failure to dismiss a juror for cause and failure to request a continuance to obtain alibi witnesses. These grounds were not presented to the state court, no matter how one construes Buckley's initial Rule 37 petition, supra note 1. Ineffective assistance based upon failure to mount an appeal is not mentioned. We thus cannot say that Buckley fairly presented the substance of his ineffective assistance claim to the state court.

                relief.   Designated Clerk's Record at 119.   By contrast, Buckley's second amended habeas petition filed by appointed counsel, contained two allegations of ineffective assistance--failure to object to a juror for cause and failure to move for a continuance--and other allegations concerning use of an involuntary confession and prosecutorial misconduct.   The claims concerning the involuntary confession and prosecutorial misconduct were clearly not raised in the first state petition.   Thus, we turn to Buckley's ineffective assistance claim
                

In Gilmore v. Armontrout, 861 F.2d 1061 (8th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989), we found that an initial ineffective assistance claim was not adequately presented for procedural purposes in state court. In the state court petition, Gilmore advanced the claim that trial counsel failed to pursue the testimony of potential alibi witnesses. But in the federal habeas petition, the ineffective assistance claim involved the prosecutor's closing argument. Id. at 1065 n. 8. "We do not think the nature of this claim is sufficiently similar to the alleged basis of ineffective assistance currently at issue to permit a conclusion that the latter claim was adequately presented in the state post-conviction appellate proceeding." Id. Buckley's...