Knott v. Mabry, s. 81-2166

• Decision Date: 11 March 1982
• Docket Number: Nos. 81-2166,81-2312,s. 81-2166
• Citation: 671 F.2d 1208
• Parties: William H. KNOTT, Appellee, v. James MABRY, Commissioner, Arkansas Department of Correction, Appellant. William H. KNOTT, Appellant, v. James MABRY, Commissioner, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1208

671 F.2d 1208

William H. KNOTT, Appellee, v. James MABRY, Commissioner, Arkansas Department of

Correction, Appellant.

William H. KNOTT, Appellant, v. James MABRY, Commissioner, Arkansas Department of

Correction, Appellee.

Nos. 81-2166, 81-2312.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 11, 1982.

Decided March 11, 1982.

Robert L. Brown, Harrison & Brown, P. A., Little Rock, Ark., for appellee/cross-appellant.

Steve Clark, Atty. Gen., Little Rock, Ark. by Dennis R. Molock, Deputy Atty. Gen., Little Rock, Ark., for appellant/cross-appellee.

Before LAY, Chief Judge, and ROSS and ARNOLD, Circuit Judges.

LAY, Chief Judge.

On May 10, 1977, in Pulaski County, Arkansas, circuit court, William H. Knott was convicted of two counts of capital felony murder and sentenced to two consecutive life terms without parole. Knott filed a petition for a writ of habeas corpus in the federal district court for the Eastern District of Arkansas. He alleged he was deprived of effective assistance of counsel when his trial counsel failed to secure expert assistance in order to attack the trial testimony of the state toxicologist. After evidentiary findings by the magistrate, the district court, the Honorable G. Thomas Eisele presiding, granted the writ. This appeal followed. We reverse.

Facts.

In the state trial court, evidence revealed that in the early morning of July 9, 1976, a fire consumed a house containing Knott's former wife and three other people. Knott's former wife and another individual died in the fire. Two witnesses saw a male running from the scene wearing a dark shirt and darker pants. When Knott was arrested, approximately three hours later, his clothing fit these descriptions. Knott's hair was singed and his ear had several wounds including a blister. One witness testified that, two days prior to the fire, he heard Knott tell his wife that he would burn the house down. The state toxicologist, Berwin Monroe, testified that he found traces of a petroleum product on Knott's hands and metal traces on Knott's hands and pants whose composition was consistent with that of a bucket found in the burned house. One of the occupants of the house testified that the bucket did not "belong" in the house. Upon conviction, Knott appealed to the Arkansas Supreme Court. His conviction was affirmed. Knott v. State, No. CR 77-211 (Ark. Apr. 24, 1978). ¹

In his second petition for a writ of habeas corpus in federal court, Knott alleged for the first time that he had received ineffective assistance of counsel at his trial. Federal Magistrate Henry L. Jones ruled that Knott had not deliberately bypassed his opportunity to raise this issue in state court and that Knott's failure to do so and filing of the petition at issue were not an abuse of the writ. Although Knott alleged his counsel was ineffective in several respects, the magistrate found that Knott's counsel was ineffective only because of his failure to secure assistance in attacking the testimony of the state toxicologist. These findings were adopted by Judge Eisele. The State appeals the granting of the writ of habeas corpus. Knott cross-appeals, raising all of the issues raised before the magistrate as alternative grounds for relief. ²Exhaustion of State Remedies.

Prior to filing his petition for post-conviction relief in federal court, Knott sought state relief under Ark.R.Crim.P. 37. However, he did not allege ineffective assistance of counsel as grounds for relief. The State argues that Knott cannot raise this issue for the first time in federal court.

However, under the Arkansas rule, Knott is barred from filing a new petition stating grounds for relief which could have been raised in his initial petition. Ark.R.Crim.P. 37.2(b); Scott v. State, 592 S.W.2d 122 (Ark.1980). Under similar circumstances, this court has reasoned that a petitioner had sought all available state remedies and had thus exhausted his state remedies. Witham v. Mabry, 596 F.2d 293, 299 n.7 (8th Cir. 1979).

The Supreme Court has held that a state procedural bar, like the Arkansas rule, can serve to preclude federal relief if petitioner's failure to assert his or her claim in the original state proceeding was a "deliberate by-pass" under Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Murch v. Mottram, 409 U.S. 41, 93 S.Ct. 71, 34 L.Ed.2d 194 (1972). We deem the Fay standard applicable in this case, despite intervening Supreme Court decisions narrowing its applicability, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), because Knott was not assisted by counsel in filing his state petition. Rinehart v. Brewer, 561 F.2d 126, 130 n.6 (8th Cir. 1977).

The magistrate and trial court found that Knott's initial failure to raise the ineffective assistance issue did not constitute "deliberate by-pass." After his initial federal petition was denied, Knott was assisted by another inmate in filing his state petition. This inmate advised Knott to assert the same grounds he had asserted in his federal petition. Knott's state petition mentioned inadequacy of counsel as a reason why certain issues were not raised on direct appeal. Knott later testified that he believed such constitutional claims were properly raised in federal court. We agree with the district court, this series of events does not evidence the requisite deliberate waiver. We also uphold the magistrate's finding that the filing of the petition at issue was not an abuse of the writ.

Ineffective Assistance of Counsel.

In order to prevail on an ineffective assistance of counsel claim, a petitioner must prove both (1) that his or her attorney failed to perform with the degree of skill and diligence with which a competent attorney would perform under similar circumstances, United States v. Easter, 539 F.2d 663 (8th Cir. 1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977), and (2) that his or her counsel's incompetence prejudiced his or her defense. United States v. Johnson, 582 F.2d 1186 (8th Cir. 1978); Reynolds v. Mabry, 574 F.2d 978 (8th Cir. 1978). The magistrate and trial court found both of these elements in Knott's counsel's failure to secure assistance in attacking the testimony of the state's expert.

The state's expert, Arkansas State Toxicologist Berwin Monroe, testified concerning three general findings from his examination of Knott's body and clothing. First, he found traces of metal in several "smears" on Knott's pants. The composition of these traces matched the composition of a metal bucket found on the back porch of the burned dwelling. Second, Monroe found similar metal traces on the palms of Knott's hands. Finally, Monroe detected a flammable, petroleum product on the palms of Knott's hands. These findings were made using three procedures: trace metal detection, energy dispersive x-ray fluorescence analysis, and gas chromatography.

John Achor, Knott's counsel, challenged this testimony on cross-examination. During cross-examination, Monroe conceded that the metal traces on Knott's pants could have been acquired up to 10 months before the day of the fire. Achor elicited testimony from Monroe that many inexpensive metal goods, including most buckets and wire products, are composed of the same elements found on Knott's hands and pants. Achor suggested through examination of Knott that the metal traces could have been acquired while Knott was in jail, exposed to numerous metal objects. Finally, Achor showed that Monroe could have taken photographs of the metal traces on Knott's hands as they appeared under ultraviolet light during the trace metal test. Counsel adduced through Monroe that this would have allowed the jury to compare such pictures to similar pictures of the bucket or of a hand which had held the bucket or some clothing which had touched the bucket. He argued this would have enabled the jury to form its own conclusion about the similarity of the metals' composition.

At the beginning of his cross-examination, Achor impeached Monroe using Monroe's prior inconsistent statement at the preliminary hearing that he had found "no real landmarks" on Knott's hands. Achor later showed that many petroleum products exist, including some perfumes, and that Monroe could not state that the product found on Knott's hands was gasoline or diesel fuel. Through cross-examination of Monroe and examination of Knott, Achor suggested that the petroleum residue could have been acquired while Knott was burning railroad waste, a petroleum product, in a "hobo jungle" prior to the morning of the fire. Achor also extracted testimony from Monroe revealing that he found no flammable substance in the bucket.

In the evidentiary hearing before the magistrate, petitioner elicited the testimony of Irving Stone, Chief of the Physical Evidence Section at the Institute of Forensic Sciences in Dallas, Texas. On the basis of this testimony, the magistrate found that petitioner's counsel did not possess the requisite expertise to effectively cross-examine Monroe. The magistrate concluded that petitioner's counsel should have sought an expert to advise and counsel him and placed such an expert on the witness stand for the defense. ³ The magistrate found that Stone suggested six weaknesses in Monroe's testimony which petitioner's counsel should have exploited. First, Stone testified that trace metal detection tests were used in very few laboratories. Monroe contradicted this testimony. Stone did not specifically indicate why the test was not widely used or question its utility for the limited purpose of demonstrating that a person had contact with metal of a general type. Second, Stone testified that he had never heard of trace metal detection being used when the holding of a gun was not the underlying issue. Stone did not, however, indicate why the technique would be ineffective in other situations. Trace metal detection techniques can be used both (1) to examine the...