Ford v. Lockhart, Civ. No. PB-C-82-431.

• Decision Date: 30 August 1994
• Docket Number: Civ. No. PB-C-82-431.
• Citation: 861 F. Supp. 1447
• Parties: Clay Anthony FORD, Petitioner, v. A.L. LOCKHART, Director Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

861 F. Supp. 1447

Clay Anthony FORD, Petitioner, v. A.L. LOCKHART, Director Arkansas Department of Correction, Respondent.

Civ. No. PB-C-82-431.

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

August 30, 1994.

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Brian H. Ratcliff, Shackleford, Shackleford & Phillips, El Dorado, AR, Rickey H. Hicks, Barbara A. Griffin, Timothy O. Dudley, Little Rock, AR, for plaintiff.

Darnisa C. Evans Johnson, Asst. Atty. Gen., Atty. General's Office, Little Rock, AR, for defendant.

MEMORANDUM OPINION AND ORDER

GEORGE HOWARD, Jr., District Judge.

Clay Anthony Ford, an African-American man, was convicted of capital murder in connection with the death of a white Arkansas state trooper and sentenced to death by an all-white jury in Mississippi County. He has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL AND FACTUAL BACKGROUND

On September 5, 1980, Sergeant Glen Bailey of the Arkansas State Police saw Ford driving at an excessive rate of speed.¹ Bailey crossed the highway median to give chase and radioed for assistance. Ford was stopped at a blockade on the exit ramp from Interstate Highway 55 into the city of Marion, Arkansas. Two police cars were in front of Ford and he stopped a short distance before reaching the first car. A uniformed trooper started walking toward Ford, who began to back up but discovered that Bailey had blocked him in from behind and was approaching Ford on foot. Ford got out of his car and shot Bailey, critically wounding him. Bailey died soon thereafter as a result of this wound.

Ford was shot by another state trooper as he attempted to escape on foot. He was arrested later that day at a nearby house. Officers learned that Ford had been driving a stolen car. Officers further learned that Ford had escaped from a work release program at the Memphis Community Service Center where he was serving a sentence for burglary and grand larceny.

The incident engendered a great deal of publicity. The trial court therefore granted Ford's motion for a change of venue from Crittenden County to Mississippi County. The jury convicted Ford of capital murder pursuant to Ark.Stat.Ann. § 41-1501 (Repl. 1977) (now codified as Ark.Code Ann. § 5-10-101(a)(3) (1993)) and on June 1, 1981, he was sentenced to death by electrocution.

Ford appealed his conviction and sentence to the Arkansas Supreme Court, which, in a 6-1 decision (Justice Hickman, dissenting), affirmed both. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). Ford's petition for certiorari to the United States Supreme Court was denied. Ford v. Arkansas, 459 U.S. 1022, 103 S.Ct. 389, 74 L.Ed.2d 519 (1982).

Petitions to proceed pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure were filed on December 15, 1982 and December 22, 1982. The Arkansas Supreme Court denied both of the petitions by per curiam orders dated December 20, 1982 and December 27, 1982.

On December 29, 1982, Ford filed a petition for writ of habeas corpus and requested a stay of the execution which had been scheduled for January 6, 1983. On January 3, 1983, the Honorable Elsijane T. Roy granted the petition for stay of execution and directed Ford to file an amended petition for writ of habeas corpus.

The petition was amended on January 27, 1983. The case was assigned to the undersigned after Judge Roy recused.

Pursuant to correspondence from petitioner, the Court appointed new counsel for petitioner. Ford filed a second amended petition for writ of habeas corpus on May 1, 1989.² The Court conducted several evidentiary hearings.³

Ford raises seven grounds for relief. Each will be addressed below.

DISCUSSION

I. In ground one, Ford alleges that he was denied effective assistance of counsel at the guilt/innocence and penalty phases. In particular, Ford asserts that trial counsel, John Kendall Cook, failed to investigate and present mitigating evidence at the penalty phase and failed to develop and present an intoxication defense at the guilt phase.⁴

Respondent asserts that Ford's claim of ineffective assistance of counsel is procedurally barred because the claims were not presented to the state courts. See Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Ford's claim of ineffective assistance of counsel should have been raised in his petition for post-conviction relief under Arkansas Rule of Criminal Procedure 37 but was not.

Ford's failure to raise his claim in state court can be excused only on a showing of cause for the default and prejudice from the alleged violation of federal law. Coleman v. Thompson, 501 U.S. 722, 750-51, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). A petitioner who cannot meet the cause and prejudice standard can obtain review if the petitioner can demonstrate that the Court's failure to hear the claim would constitute a "miscarriage of justice," that is, that the petitioner can show "actual innocence." Sawyer v. Whitley, ___ U.S. ___, ___ - ___, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269 (1992). Ford presents several arguments to counter the state's claim of procedural default.

Ford first argues that the ineffectiveness of his post-conviction counsel, Patrick Goss, establishes cause for the default. He contends that Coleman does not foreclose his argument, as that case dealt only with the default of claims not raised in an appeal of the state post-conviction proceedings. Coleman did not address the effectiveness of counsel at the first forum where a petitioner can effectively raise the ineffective assistance of trial counsel claim, that is, at the Rule 37 proceeding. Such an argument, however, is foreclosed by subsequent Eighth Circuit decisions.

In Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir.1992), the court found that even if the state post-conviction proceeding was the first time the petitioner could raise his claim, counsel's failure to do so did not excuse the procedural default. See Battle v. Delo, 19 F.3d 1547, 1553 (8th Cir.1994) (declining to reconsider Nolan). See also Nave v. Delo, 22 F.3d 802, 810 (8th Cir.1994) (applying holding of Nolan).

Second, Ford argues that he has established cause for the default because he did not authorize Goss to file a petition on his behalf. In Williams v. Lockhart, 862 F.2d 155, 160 (8th Cir.1988), after remand, 927 F.2d 374 (8th Cir.1991), the Eighth Circuit held that dismissal of Williams' second petition for writ of habeas corpus would be unfair if the first petition had been filed and litigated without Williams' knowledge, participation, or authorization.⁵

At the evidentiary hearing, Goss testified that when Ford's execution date was set, the director of the Arkansas chapter of the American Civil Liberties Union (ACLU) and two attorneys asked Goss to file a petition to the United States Supreme Court (H.T. 300).⁶ Goss filed an application for a stay in the Supreme Court without contacting Ford (H.T. 301). After the stay was granted, Goss filed a petition for certiorari and met with Ford while it was pending (H.T. 302).

After the petition for certiorari was denied, Goss filed the Rule 37 petition. Goss did not seek Ford's authorization or his permission to file the petition (H.T. 302). Furthermore, there is no evidence that Ford ratified the unauthorized Rule 37 petition after Goss filed it.

Ford is foreclosed from pursuing his remedies under Rule 37. The Rule in effect at the time required that the petition be filed within three years of the date of commitment. A.R.Cr.P. 37.2(c). See White v. State, 277 Ark. 429, 642 S.W.2d 304 (1982). Subsequent petitions will not be entertained unless the original petition was specifically denied without prejudice to filing a second petition. A.R.Cr.P. 37.2(b) Collins v. State, 280 Ark. 312, 657 S.W.2d 546 (1983).⁷ Thus, Ford is without further state remedies, and is barred from presenting his claim in state court.

In Coleman v. Thompson, 501 U.S. at 752-55, 111 S.Ct. at 2566-67, the Court held that a state prisoner must "bear the risk of attorney error that results in a procedural default" if the lawyer was his or her "agent when acting, or failing to act, in furtherance of the litigation." The Supreme Court fashioned the rule from the principles of agency law that "each party is deemed bound by the acts of his lawyer-agent." Id. 501 U.S. at 753, 111 S.Ct. at 2567 (quoting Link v. Wabash Railroad Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962)).

The Court finds that the Ford did not authorize the filing of the Rule 37 petition. Goss filed it without Ford's knowledge or participation. Therefore Ford should not be bound by the petition or Goss' failure to raise the ineffective assistance of counsel claim. See Deutscher v. Angelone, 16 F.3d 981 (9th Cir.1994).

The Court finds that Ford has established cause for the default. The prejudice flowing therefrom, that is, the failure to present mitigating evidence to the jury, as will be discussed below, deprived Ford of a fair trial at the penalty stage. Furthermore, as will be discussed below, the failure to present the mitigating evidence worked to Ford's actual and substantial disadvantage.

The Court, however, is not persuaded that Ford has demonstrated actual prejudice with regard to his claim that his counsel was ineffective for failing to raise the intoxication defense at trial.⁸ At the time of Ford's trial, voluntary intoxication was a defense. Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978) (overruled by White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986)). However, Ford has not demonstrated that the jury would have found him not guilty of capital murder based on an intoxication defense.

Even assuming that the claim of ineffective assistance of counsel at the penalty phase is barred, the Court finds that the "actual innocence" exception applies in this instance. For the...