Maynard v. Lockhart, 92-1090

• Decision Date: 14 December 1992
• Docket Number: No. 92-1090,92-1090
• Citation: 981 F.2d 981
• Parties: Larry MAYNARD, Appellee, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 981

981 F.2d 981

Larry MAYNARD, Appellee, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellant.

No. 92-1090.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 14, 1992.

Decided Dec. 14, 1992.

Kelly K. Hill, Little Rock, AR, argued (Winston Bryant and Kyle R. Wilson, on brief), for appellant.

Faber D. Jenkins, Jr., Sherwood, AR, argued for appellee.

Before WOLLMAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and LOKEN, Circuit Judge.

WOLLMAN, Circuit Judge.

The State of Arkansas appeals from a district court order granting Larry Maynard federal habeas corpus relief under 28 U.S.C. § 2254. We reverse.

I.

Maynard was charged with delivering a controlled substance (marijuana). The charge arose from events that occurred on February 25, 1984. On that day, law enforcement officers arrested William Cunningham at his residence near Mountain Home, Arkansas. The officers found thirty-four one-quarter ounce bags of marijuana in Cunningham's car. Cunningham stated that he had received the marijuana from Maynard. Maynard's fingerprints were found on five of the bags; Cunningham's fingerprints were found on none.

Cunningham testified that he had sold marijuana and LSD for Maynard on a commission basis. He testified that Maynard would weigh and package the drugs and then provide them to him for resale. He stated that on February 25, 1984, he went to Maynard's residence, where Maynard gave him the thirty-four bags of marijuana. Cunningham testified further that in addition to supplying him with drugs, Maynard also had referred forty to fifty drug-seeking customers a week to him.

Charles Beta, an undercover informant, corroborated Cunningham's testimony. Beta testified that he had seen Maynard weigh and package marijuana on several occasions but had never seen Cunningham do so. Beta stated that he had purchased marijuana from Maynard several times in the past.

Maynard denied supplying the marijuana found in Cunningham's car. He testified that he had purchased marijuana from Cunningham on February 24, 1984, the day before Cunningham's arrest. He explained that his fingerprints were on the five bags of marijuana because he had handled them on February 24 as he was deciding which bag to purchase. He denied any relationship with Cunningham other than having bought marijuana from him.

The jury convicted Maynard and sentenced him to twenty years in prison. The Arkansas Court of Appeals affirmed his conviction, Maynard v. State, 21 Ark.App. 20, 727 S.W.2d 858 (1987) (en banc), and the Arkansas Supreme Court denied his petition for post-conviction relief filed pro se under Arkansas Rule of Criminal Procedure 37, Maynard v. State, No. CR 87-182, 1987 WL 19969 (Ark. Nov. 16, 1987) (per curiam).

On December 16, 1987, Maynard filed a pro se section 2254 petition alleging that his trial counsel had been constitutionally ineffective in failing (1) to object to Charles Beta's hearsay testimony; (2) to call to the stand one Kathy Zindell, whose testimony would have discredited Cunningham's testimony; (3) to emphasize to the jury inconsistencies in Beta's and Cunningham's testimony; and (4) to procure evidence that would have refuted Beta's and Cunningham's inculpatory testimony.

In response, the state asserted that Maynard had defaulted on the third and fourth allegations of ineffective assistance by failing to include them in his state petition for post-conviction relief. Following the state's response, the magistrate judge ordered Maynard, who was now represented by appointed counsel, to file an amended petition setting forth, among other things, any facts that might "constitute cause for and prejudice from" any alleged procedural default.

On January 4, 1991, Maynard filed an amended habeas petition in which he alleged that any procedural default had been due to his trial and appellate counsel's lack of experience, ignorance of the law, or oversight. He offered no showing of prejudice. He also alleged that he had been denied effective assistance of counsel for a fifth reason: that counsel had failed to object to testimony concerning Maynard's reputation as a drug dealer. As with his third and fourth allegations of ineffective assistance, Maynard had not included this fifth allegation in his state petition for post-conviction relief.

At the evidentiary hearing before the magistrate judge, Maynard asserted a sixth claim of ineffective assistance: that counsel had failed to move for a directed verdict at trial. Although the state reasserted at the hearing that Maynard had defaulted on his third and fourth allegations of ineffective assistance, Maynard advanced no showing of cause or prejudice with respect to these claims.

The magistrate judge recommended that Maynard be granted habeas relief. Although the magistrate judge noted in his findings and recommendations that the state had pled procedural default to some of Maynard's allegations, he made no express finding on the issue. The magistrate judge simply found that Maynard's trial counsel's performance had been deficient. In reaching this conclusion, he expressly cited all of Maynard's allegations of ineffective assistance, except the third. Additionally, the magistrate judge, sua sponte, raised a seventh instance of ineffective assistance of counsel, stating that counsel's performance had been deficient because counsel had placed Maynard's character at issue, thus allowing the prosecution to attack his character. The magistrate judge's only express finding as to whether counsel's performance had prejudiced Maynard's defense was the statement that counsel's failure to object during Beta's testimony had been "both devastating and prejudicial."

In its response to the magistrate judge's recommendation, the state alerted the district court to the fact that the magistrate judge had failed to make any finding on the procedural default issue. Nevertheless, the district court adopted the recommendation in its entirety without any analysis of the default issue and granted Maynard habeas relief.

II.

A. Procedural Default

We hold that the district court erred in granting Maynard habeas relief based on claims of ineffective assistance of counsel that were not raised in Maynard's state post-conviction petition without having first determined whether those allegations were barred from federal habeas review by procedural default.

We find that Maynard procedurally defaulted his third, fourth, and fifth ineffective assistance allegations by not raising them in his state post-conviction petition. Maynard was required under then extant Arkansas law to raise ineffective assistance of counsel allegations in his state post-conviction petition. Ark.Code Ann.R.Crim.P. 37 (Michie 1992) (see Publisher's Notes); Carrier v. State, 278 Ark. 542, 647 S.W.2d 449, 450 (1983) (per curiam). Having received a ruling on the merits of a state post-conviction petition, a petitioner may not file a second such petition. Collins v. State, 280 Ark. 312, 657 S.W.2d 546, 548 (1983) (per curiam). Issues that could have been raised in the first post-conviction petition, but were not, are considered waived. Id. Consequently, because Maynard could have raised these ineffective assistance allegations in his post-conviction petition filed pro se, but did not, they are waived and thus procedurally defaulted. ¹

A state procedural default bars federal habeas review unless the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law." Coleman v. Thompson, --- U.S. ----, ----, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). Based on the record before us, we conclude that Maynard has failed to establish cause for any of his defaults. Although Maynard has offered two showings of cause--counsel's inadequate performance and perceived futility--both are without merit.

In his amended federal habeas petition, Maynard maintained that any procedural default was due to his trial and appellate counsel's lack of experience, ignorance of the law, or oversight. The performance of Maynard's trial and appellate counsel is irrelevant to the issue of showing cause for the procedural defaults, however, for Maynard himself failed to raise them in his pro se state post-conviction petition. ²

At the evidentiary hearing before the magistrate judge, Maynard implicitly offered perceived futility as a second cause for his procedural defaults. Although Maynard knew about these alleged errors when he filed his state post-conviction petition, he did not raise them in his petition because he "knew that it ... wasn't going to be of much difference pertaining to [his] case. [He] knew [he] had to go through that court before [he] could get to the District Court." Maynard's belief that it would have been futile for him to assert these allegations in his post-conviction petition cannot by itself establish cause for omitting the claims. Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982). "If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim." Id.

Having found no cause for the procedural defaults with respect to the third, fourth, and fifth claims of ineffective assistance, we need not address whether these alleged errors prejudiced Maynard's defense.

The magistrate judge found, sua sponte, that trial counsel's performance had been deficient because counsel had opened the door to the issue of Maynard's character. We hold that it was improper for the magistrate judge to consider this defaulted instance of ineffective assistance without having first found cause for and prejudice from the default. In the absence of a finding of cause and prejudice, a federal court is precluded from reviewing procedurally defaulted claims on its own motion. Stewart v. Dugger, 877 F.2d 851,...