Cox v. Norris

• Decision Date: 27 September 1996
• Docket Number: Civil No. PB-C-92-465.
• Citation: 958 F.Supp. 411
• Parties: Ratford COX, Sr., Petitioner v. Larry NORRIS, Director, Arkansas Department of Corrections, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

Page 411

958 F.Supp. 411

Ratford COX, Sr., Petitioner v. Larry NORRIS, Director, Arkansas Department of Corrections, Respondent.

Civil No. PB-C-92-465.

United States District Court, E.D. Arkansas.

September 27, 1996.

Ratford Edward Cox, Pine Bluff, AR, pro se.

Jeffrey M. Rosenzweig, Little Rock, AR, for Petitioner.

Kelly K. Hill, Arkansas Attorney General's Office, Little Rock, AR, for Respondent.

MEMORANDUM OPINION AND ORDER

EISELE, District Judge.

Before the Court is petitioner's amended petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Respondent has filed a response to this petition, opposing the relief sought. For the reasons expressed in the following opinion, the Court will deny petitioner the habeas relief requested.

I.

In April, 1990, petitioner and his son were tried jointly before a jury for the murder of Freddie Harrison. The basic factual background surrounding that murder has been summarized by the Arkansas Supreme Court.

[Petitioner] and [petitioner's son] ... attended the Independence Day celebration at the Clear Creek Bridge near Mena on July 4, 1989. Late in the day [petitioner's son], an adult, was setting off fireworks, when Freddie Harrison, a war veteran, said the fireworks made him nervous. He asked [petitioner's son] to stop setting them off [Petitioner's son] refused, and Harrison started to shove him around. [Petitioner] said, "Stop it, if you all don't stop it, somebody's gonna get hurt." Harrison knocked [petitioner's son] to the ground. [Petitioner] reached into his nearby van, grabbed a .25 caliber pistol, and fired three to five shots at Harrison; hitting him in the chest and side. Harrison fell to the ground near a road.

Jonathan Cox, a bystander, went to Harrison and attempted to aid him, but [petitioner's son] kicked him away. Harrison was still breathing at the time. [Petitioner's son] dragged Harrison from the road over into some brush about two car lengths away. He returned to the van and said, "It's not over with yet, we gotta finish it." [Petitioner] handed him the pistol [Petitioner's son] then disappeared into the nearby brush where he had left Harrison. A witness heard three more shots. [Petitioner's son] reappeared and gave the pistol back to [petitioner]. Harrison's body was later found by the police. He had been shot six times. Three of the bullet wounds were in his chest and side, and three more, which had been fired from only a few inches away, were in his head, with one of them being between the left eye and the left ear, another being to the left forehead, and the third being above the right ear. Subsequently, four of the bullets were removed from Harrison's body, and a firearms tool marks examiner found all four bullets had been fired from [petitioner's] pistol.

[Petitioner] subsequently told Jessie Hooks that, "If it got out, he would be the same way Freddie [Harrison] was." Joann Cox, another eyewitness, said [petitioner] told her to "Keep my fucking mouth shut or I would get the same thing." He told eyewitness Carl Duramus, "If I knew what was good for me, I'd keep my mouth shut, that I didn't know nothing about nothing."

Joann Cox quoted [petitioner's son] as saying, "He shot Freddie Harrison in the head. He did not say in the head. He just said he shot him to get him out of his misery."

About eight months later [petitioner], while in the Scott County jail, solicited Arnold Shores, another inmate, to kill the state's main witness, Carl Duramus.

Cox v. State, 305 Ark. 244, 246-47, 808 S.W.2d 306, 308-09 (1991). The Court has independently examined the seven-volume transcript of petitioner's trial and is satisfied that the Arkansas Supreme Court's factual account is an accurate summary of the testimony and evidence presented at that trial. Accordingly, that court's factual findings are presumptively correct. 28 U.S.C. § 2254(d); Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir.1995); Brown v. Lockhart, 781 F.2d 654, 658 (8th Cir.1986); Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981).

On April 23, 1990, both petitioner and his son were convicted of capital murder, in violation of Ark.Code Ann. § 5-10-101(a) (Michie Supp.1989), and, although the death penalty was sought against each of them, the jury, in accordance with Ark.Code Ann. §§ 5-4-602 to -605 (Michie Supp. 1989), sentenced both to life imprisonment without possibility of parole. See Ark.Code Ann. § 5-10-101(c), sentenced both to life imprisonment without possibility of parole. See Ark. Code Ann. § 5-10-101(c) (Michie Supp.1989). On May 23, 1990, following his conviction but before his direct appeal, petitioner filed a motion for a new trial, challenging, among other issues (each of which had been raised at trial), the constitutional effectiveness of his court-appointed trial counsel, as he was then required to do under Ark R.Crim. P. 36.4 (Michie 1990).¹ A hearing was held on this motion on August 13, 1990, at which petitioner was represented by his trial attorney, Mr. Wayland A Parker. Following this hearing, the trial court indicated that it would deny petitioner's motion. No order was entered to that effect, however.

Shortly thereafter, on August 30, 1990, the trial court, in light of the Arkansas Supreme Court's then-recent decision in Mobbs v. State, 303 Ark. 98, 792 S.W.2d 601 (1990), entered an order stating that it would reconsider petitioner's Rule 36.4 motion, insofar as petitioner had sought a new trial based upon ineffective assistance of trial counsel, and the trial court appointed a new attorney, Ms. Patricia Page, to represent petitioner in that Rule 36.4 proceeding. On September 21, 1990, the trial court entered a similar order, in which it indicated that no final order had then been entered in connection with petitioner's Rule 36.4 motion, and the trial court scheduled a second hearing on petitioner's motion for October 5, 1990. Following that hearing, which was completed on October 8, 1990, the trial court denied petitioner's Rule 36.4 motion in a written order filed on October 15, 1990.

On October 22, 1990, petitioner timely filed a notice of appeal with the Arkansas Supreme Court, see Ark. R.Crim. P. 36.9 (Michie 1990), and, on April 22, 1991, petitioner's conviction (as well as his son's) was affirmed on direct appeal Cox v. State, supra. No petition for certiorari was filed with the United States Supreme Court, and petitioner has not thereafter sought post-conviction relief under Ark. R.Crim. P. 37.1 (Michie 1991 to 1996).

On July 30, 1992, petitioner filed his initial pro se habeas petition, alleging, in essence, the same five grounds for relief he advanced on direct appeal before the Arkansas Supreme Court:²

(1) The trial court erred in not directing a verdict for petitioner in that the state failed to prove that petitioner acted with the requisite intent, i.e. with the "premeditated and deliberated purpose of causing the death of another," as required by Ark. Code Ann. § 5-10-101(a)(4) (Michie Supp. 1989).

(2) The trial court erred in permitting the testimony of Arnold Shores because Mr. Shores' testimony was not disclosed prior to trial and because his testimony was relevant and prejudicial.

(3) The trial court erred in not granting petitioner's severance motion in which he sought to be tried separately from his son.

(4) The trial court erred in admitting the testimony of Joann Cox, Jonathan Cox, James Roshto, and Carl Duramus because those witnesses had discussed their testimony prior to trial, in violation of the trial court's order under Ark. R. Evid. 615.

(5) Petitioner's trial counsel was constitutionally ineffective because (a) he declined to cross-examine five key state witnesses; (b) he refused to allow petitioner to testify, and hence he failed to present evidence indicating petitioner's lack of the requisite intent; and (c) he failed to move for a mistrial based upon improper comments made during the prosecuting attorney's closing argument.

Petitioner was initially denied appointed counsel, and his petition languished before a magistrate judge for almost two years, due in large part to petitioner's failure to respond adequately to a prior order of the Court which had directed him to respond to certain procedural arguments raised by the respondent in his reply to petitioners initial petition, as well as his efforts to have a "jailhouse lawyer" file an amended and substituted "next friend" petition, ostensibly under the authority of 28 U.S.C. § 2242. The Court ultimately denied leave to file this "next friend" petition, but the Court, upon reconsideration of its prior orders, appointed counsel to represent petitioner and granted petitioner leave to file an amended petition.

On July 11, 1994, petitioner, through his appointed counsel, filed his amended habeas petition. Petitioner's amended petition raises, in addition to those arguments advanced in his initial petition (most of which have been incorporated by reference), several additional grounds for relief, most, but not all, of which were never presented to the state courts:

(1) Petitioner was denied effective assistance of counsel at trial because (a) trial counsel continued to represent petitioner even though he had a conflict of interest, namely the conflict caused by counsel's simultaneous representation of both petitioner and a key State's witness, Arnold Shores, and (b) trial counsel failed to argue for a mandatory severance of petitioner's trial from that of his son.

(2) Petitioner's due-process right to a fair trial was violated because (a) his trial counsel had a conflict of interest and (b) the trial court failed to sever petitioner's trial from that of his son.

(3) Petitioner was denied effective assistance of counsel during both his Rule 36.4 hearing and on direct appeal because (a) appellate counsel failed to raise petitioner's conflict-of-interest claim relating to his trial counsel during those proceedings and (b) ...