Marcyniuk v. Payne

Decision Date08 July 2022
Docket Number19-1943
Parties Zachariah MARCYNIUK, Plaintiff - Appellant v. Dexter PAYNE, Director, Arkansas Department of Correction, Defendant - Appellee
CourtU.S. Court of Appeals — Eighth Circuit

Zachariah Marcyniuk, Grady, AR, Pro Se.

Nadia Wood, Assistant Federal Public Defender, Federal Public Defender's Office, Little Rock, AR, for Plaintiff-Appellant.

Rachel Marie Kemp, Asher Steinberg, Attorney General's Office, Little Rock, AR, for Defendant-Appellee.

Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.

SHEPHERD, Circuit Judge.

After an Arkansas jury convicted him of capital murder and sentenced him to death, Zachariah Marcyniuk petitioned the district court2 for a writ of habeas corpus in part on the basis that an off-the-record jury selection procedure violated his constitutional rights. Without holding an evidentiary hearing, the district court dismissed Marcyniuk's petition with prejudice. We granted a certificate of appealability as to whether the district court prematurely dismissed Marcyniuk's claims that the pretrial jury selection procedure violated his right to be present, right to a public trial, and right to an appeal and that his trial counsel was ineffective for participating in the procedure. Having jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we affirm.

I.

Marcyniuk began a romantic relationship with Katherine Wood in 2006, when they were both students at the University of Arkansas. After Wood ended the relationship in February 2008, Marcyniuk exhibited obsessive and harassing behavior towards Wood. In the early morning hours of March 9, 2008, Marcyniuk went to Wood's apartment in Fayetteville, Arkansas. After noticing that Wood was not home, Marcyniuk entered her apartment through a bedroom window. Though Marcyniuk testified that his intent was to return a cell phone that he had stolen from Wood, he did not have the cell phone with him when he entered Wood's apartment. Marcyniuk went through Wood's belongings and accessed her laptop four times looking for evidence that she had a new boyfriend before eventually falling asleep in a chair. When Wood returned home hours later, Marcyniuk met her at the front door, dragged her into her apartment, and stabbed her to death with a knife. At trial, Marcyniuk testified that "[w]e were just kind of wrestling and there was a knife" and that he remembered "getting up and there was blood everywhere." See Marcyniuk v. State (Marcyniuk II ), 436 S.W.3d 122, 125 (Ark. 2014). After leaving Wood's apartment, Marcyniuk returned to his home, where he placed his bloody clothes and the knife in a bag and picked up his dog before driving to his mother's house. Marcyniuk's parents thereafter contacted law enforcement "because they were concerned for [Wood] after [Marcyniuk] showed up ... in a disheveled, frantic state asking [his mother] to take care of his dog and stating that he thought he had hurt [Wood]." Marcyniuk v. State (Marcyniuk I), 373 S.W.3d 243, 247 (Ark. 2010). Marcyniuk then drove west into Oklahoma, disposing of the knife somewhere along the way before being stopped and arrested by Oklahoma Highway Patrol.

Marcyniuk was charged in the Washington County Circuit Court with capital murder and residential burglary in connection with Wood's murder. Prior to Marcyniuk's trial, his trial counsel requested that the trial court use juror questionnaires. See Ark. R. Crim. P. 32.1. Thereafter, 100 potential jurors were sent a 29-page questionnaire consisting of 88 questions, including questions about the potential juror's education, experience with the judicial process and crime, exposure to pretrial publicity, beliefs about the death penalty, and views of the criminal justice system. A cover letter mailed out with each questionnaire informed potential jurors that the completed questionnaires would be destroyed after final resolution of the case. At least 90 potential jurors completed and returned the questionnaires. Forty-seven potential jurors reported in person for jury duty, and after voir dire was conducted in open court, a jury of 11 women and 1 man was seated. After a four-day trial, the jury convicted Marcyniuk of both charges and sentenced him to death on the capital murder charge. On direct appeal, after considering each of Marcyniuk's arguments and reviewing "the entire record ... pursuant to Rule 4-3(i) of the Rules of the Arkansas Supreme Court, Ark.[ ]Code Ann. § 16-91-113(a), and Rule 10 of the Rules of Appellate Procedure—Criminal," the Arkansas Supreme Court found no reversible error and affirmed Marcyniuk's capital murder conviction3 and death sentence. Marcyniuk I, 373 S.W.3d at 256. Marcyniuk then sought state post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37, which allows a person in custody to file a petition in the circuit court that imposed his or her sentence requesting that the sentence be vacated or corrected. See Ark. R. Crim. P. 37.1(a). Following a two-day hearing (the Rule 37 hearing), the Washington County Circuit Court denied Marcyniuk's petition, and the Arkansas Supreme Court affirmed. Marcyniuk II, 436 S.W.3d at 125.

While preparing to file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Marcyniuk's behalf, Marcyniuk's federal habeas counsel discovered through an investigator that, prior to trial—and without Marcyniuk's knowledge—Marcyniuk's trial counsel agreed to and participated in a pretrial jury selection procedure whereby both sides reviewed the potential juror questionnaires and each submitted a list of 15 potential jurors to strike from the venire. These 30 potential jurors were not called to appear in person for jury duty, and the strikes eliminating these potential jurors did not count as peremptory strikes for either side. The lists were kept in a 16-page juror information file (the juror information file) that was maintained separate from the trial record. Based upon this discovery, Marcyniuk's federal habeas petition alleged, inter alia , that the pretrial jury selection procedure resulted in violations of his right to be present, right to a public trial, and right to appellate review and that his trial counsel rendered ineffective assistance when he agreed to and failed to object to the pretrial jury selection procedure (collectively, the jury selection claims).

The district court denied Marcyniuk's request in his first motion for discovery to depose the prosecuting attorney, trial judge, and circuit clerk that handled Marcyniuk's trial, finding that granting Marcyniuk's request "would not resolve any factual disputes or assist the Court in deciding Marcyniuk's claims, or any issues related to procedural default." R. Doc. 24, at 3. However, the district court granted the portion of Marcyniuk's motion requesting that the district court expand the record to include the juror information file and declarations from Jamie Reynolds and Pam Penn, who were both employed by the Washington County Circuit Court Clerk's Office at the time of Marcyniuk's trial. Penn's declaration provided that the trial judge handled death penalty cases differently from his other cases and allowed the prosecution and defense to strike a number of potential jurors prior to voir dire in those cases. In that same declaration, Penn further stated that "[t]he potential juror information maintained by the deputy clerk assigned to each judge is entirely different from the information filed in the circuit court's case file" and that the deputy clerks "each maintain [their] own records regarding the potential juror panel information used for a trial." R. Doc. 42-28, at 1.

The district court subsequently dismissed Marcyniuk's petition in its entirety and denied his "embedded request for a hearing," finding that he had procedurally defaulted his jury selection claims by failing to raise them on direct appeal to the Arkansas Supreme Court or during his state Rule 37 proceedings and had failed to demonstrate cause and prejudice as required to excuse his procedural default of these claims. Marcyniuk sought a certificate of appealability from the district court on the issues of, inter alia , whether the district court was required to hold an evidentiary hearing on his jury selection ineffective assistance of counsel claim and whether his constitutional rights were violated by the pretrial jury selection procedure. The district court denied Marcyniuk's motion, and he filed a motion for a certificate of appealability with this Court. We granted Marcyniuk a certificate of appealability "as to claims [1].A., [1].B., 1.C., and [1].D[.], as stated on pages 7-8 of Zachariah Marcyniuk's Application filed August 8, 2019." Marcyniuk's application states:

A certificate of appealability should issue as to:

1. Whether the following off-the-record jury selection claims were prematurely dismissed:
A. Off-the-record jury selection violated Marcyniuk's right to be present.
B. Off-the-record jury selection violated Marcyniuk's right to a public trial.
C. Off-the-record jury selection violated Marcyniuk's right to an appeal.
D. Counsel was ineffective for participating in off-the-record jury selection.

Appl. for Certificate of Appealability, at 10-11 (Aug. 12, 2019). The body of Marcyniuk's application clarifies that these are Claims 3.3.1., 3.3.2., 3.3.5., and 3.10.7., respectively, as asserted in his Petition for Writ of Habeas Corpus.4

II.

Marcyniuk argues that the district court lacked an adequate basis for its conclusion that he failed to show cause and prejudice to excuse the procedural default of his jury selection claims, and he asks this Court to vacate this conclusion and reverse the district court's denial of his requests for discovery and an evidentiary hearing. "When reviewing the denial of a § 2254 habeas petition, we review the district court's findings of fact for clear error and its conclusions of law de novo.’ We review a district court's finding of procedural...

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