Martin v. Payne

• Decision Date: 03 February 2023
• Docket Number: 4:20-cv-00048 KGB/PSH
• Parties: GREGORY MARTIN PETITIONER v. DEXTER PAYNE, Director, Arkansas Division of Correction RESPONDENT
• Court: U.S. District Court — Eastern District of Arkansas

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GREGORY MARTIN PETITIONER v. DEXTER PAYNE, Director, Arkansas Division of Correction RESPONDENT

No. 4:20-cv-00048 KGB/PSH

United States District Court, E.D. Arkansas, Central Division

February 3, 2023

FINDINGS AND RECOMMENDATION

INSTRUCTIONS

The following recommended disposition has been sent to United States District Judge Kristine G. Baker. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

DISPOSITION

Gregory Martin (“Martin”) filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on January 13, 2020. He was sentenced to 156 months' imprisonment in the custody of the Arkansas Division of Correction (ADC) in June of 2018 after a Miller County jury found him guilty of aggravated robbery. Martin filed an untimely Notice of Appeal with the trial court on June 25, 2019, and a Motion for Belated Appeal with the Supreme Court of Arkansas on September 19, 2019. Martin asserted, as the basis for his appeal, that his trial attorney ignored his request to pursue a direct appeal. Ultimately, Martin's motion for a belated appeal was granted and he was allowed to proceed with his direct appeal.

On November 17, 2021, the Arkansas Court of Appeals affirmed Martin's conviction, finding no merit in his assertion that there was insufficient evidence linking him to the aggravated robbery. See docket entry no. 19-1. Martin did not file a Rule 37 collateral attack in the trial court.

On January 17, 2023, United States District Judge Kristine G Baker declined to adopt an earlier recommendation from the undersigned,^[1] and referred the case back for further proceedings.

Martin alleges the following claims for relief:

1. Constitutional errors, including failure to offer a plea deal, denial of his right to confront his accuser, cruel and unusual punishment, and illegal search;

2. Witness credibility and inconsistency;

3. Ineffective assistance of trial counsel, including counsel's failure to file a direct appeal; and

4. Error in dismissing a black juror from the panel for no reason.

Respondent Dexter Payne (“Payne”), contended that the statute of limitations bars consideration of these claims and that Martin's claims were not properly before this Court due to his failure to adequately raise these claims in state court, as required by Wainwright v. Sykes, 433 U.S 72 (1977), and its progeny.

Because of the unusual procedural posture of the case (with the direct appeal taking place in a delayed fashion) the Court will consider Payne's procedural bar argument and address the merits of claims one and two.

Procedural Bar

In Wainwright v. Sykes, supra, the United States Supreme Court held that a federal court should not reach the merits of a litigant's habeas corpus allegation if he has procedurally defaulted in raising that claim in state court that is, if he was aware of the ground, but failed to pursue it to a final determination. The exception created by the Supreme Court permits such an allegation to be addressed if the litigant can establish "cause" for his failure to assert the known ground and "prejudice" resulting from that failure. See also, Clark v Wood, 823 F.2d l24l, l250-5l (8th Cir. l987); Messimer v. Lockhart, 822 F.2d 43, 45 (8th Cir. l987). The Wainwright v. Sykes cause and prejudice test was clarified by two subsequent Supreme Court decisions, Smith v. Murray, 477 U.S. 527 (l986), and Murray v. Carrier, 477 U.S. 478 (l986).

With respect to cause, these cases explain that the Court has "declined in the past to essay a comprehensive catalog of the circumstances that [will] justify a finding of cause." Smith v. Murray, 477 U.S. 533-34. However, one can discern from these cases several circumstances in which cause might be found: first, where some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rules, see Murray v. Carrier, 477 U.S. at 488; second, where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, see Reed v. Ross, 468 U.S. l (l984); or third, if the litigant failed to receive the effective assistance of counsel. See Murray v. Carrier, 477 U.S. at 488. In addition, there is one extraordinary circumstance where a federal habeas court may grant relief without a showing of cause: where a constitutional violation has probably resulted in the conviction of one who is actually innocent. Id. at 496.

Liberally construing Martin's petition the Court finds claims one and two can be viewed as attacks on the sufficiency of the evidence, which was the claim advanced on direct appeal. Accordingly, we find these claims were raised in state court and decided there. Thus, there is no procedural bar to their consideration.

Claims three and four, however, were not raised in state court. Claim three could have been asserted in a Rule 37 petition. Such a petition, however, was not filed in state court. Claim four could have been, but was not, raised on direct appeal, when the sole claim was sufficiency of the evidence.

Martin has provided no cause for his failure to advance claims three and four in state court, nor has he alleged any prejudice from the claims not being advanced and considered. As a result, the Court finds claims three and four are procedurally barred from consideration and should be dismissed on that basis.

Sufficiency of the evidence

The challenge to the sufficiency of the evidence was pursued in Martin's delayed direct appeal in state court. The Arkansas Court of Appeals summarized the factual background and the merits of Martin's assertions as follows:

From the testimony presented at trial, the following relevant chain of events occurred in the early morning hour of May 9 2017. At approximately 2:00 a.m., Jacqueline Horton, the victim, and her two children arrived at their home in Texarkana after shopping at Walmart. As Ms. Horton pulled up to her house, two men, later identified as Charod Robinson and appellant, approached her car. Charod Robinson pointed a gun at Ms. Horton and said, “You know what this is, right?” Ms. Horton told her kids to run inside the house. Both men were wearing dark-colored gloves, and the person later identified as the appellant was wearing a blue bandana over his nose and mouth. While Charod Robinson kept his gun pointed at Ms. Horton, appellant searched her car and took a cell phone, Ms. Horton's keys, and between $400 and $500 in cash. The men left on foot.

Shortly after 2:00 a.m., Texarkana Police Officer Douglas Pearson was patrolling the neighborhood near Ms. Horton's residence. Officer Pearson testified that he was patrolling the area because there was a significant increase in the crime rate. Officer Pearson stated that he saw a man dressed in a hoodie and dark pants with his hands in his pocket walking down the street. Officer Pearson considered the man suspicious and stopped and interviewed the man. The man identified himself as Charod Robinson, and he said that he was walking to his sister's house on Summerhill Road approximately six miles away. Officer Pearson ran Robinson's identification but the search revealed no outstanding warrants, and Robinson was allowed to leave. Robinson continued to walk, and Officer Pearson drove around the block but watched Robinson from a distance.

At nearly the same time and a couple of blocks over, at 2:19 a.m., Officer Johnathon Burkes pulled appellant over for driving a car without a license plate. Officer Dakota Easley and Officer Nathan Lavender arrived to backup Officer Burkes. Officer Burkes and two other officers searched appellant's car with appellant's consent. During the search, the officers found black cotton gloves, Charod Robinson's driver's license, several cell phones, and a blue bandana. Officer Easley recognized the name Charod Robinson as being the same name that Officer Pearson had just stopped a couple of blocks away and released.

Ms. Horton had decided to stay at a hotel because the persons who had robbed her had taken the keys to her house. As Ms. Horton was driving only a couple of blocks from her house, she saw the officers who had stopped the appellant. Ms. Horton stopped to report the aggravated robbery. While reporting the aggravated robbery, Ms. Horton pointed at appellant and stated that he sounded and looked like one of the men who had just robbed her. Accordingly, Officer Easley radioed Officer Pearson to relocate Charod Robinson. Officer Pearson stopped Robinson a second time, searched him, and found $457 in cash in his back pocket. Other officers had arrived to assist at appellant's traffic stop, and Officers Easley and Lavender drove around the block to assist Officer Pearson with Charod Robinson. Officers Easley and Lavender searched the area and found Ms. Horton's stolen keys. The officers then retraced Charod Robinson's path and found a 9mm handgun. Both appellant and Robinson were subsequently arrested for aggravated robbery.

At trial, Ms. Horton testified that during the aggravated robbery, she heard the two men talking, and she stated that they had a Californian accent. In the courtroom, she specifically identified appellant as the man who had robbed her and stated that he was the man who was wearing the blue bandana during the aggravated robbery. Ms. Horton further identified the blue bandana, black gloves, and handgun in pictures of items recovered as objects that were used in the aggravated robbery.

After the State rested its case, appellant moved for a directed

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