Noel v. Norris, No. 5:00CV00363 SWW.

CourtUnited States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
Writing for the CourtSusan Webber Wright
Citation194 F.Supp.2d 893
PartiesRiley Dobi NOEL, Petitioner, v. Larry NORRIS, Director, Arkansas Department of Correction, Respondent.
Decision Date01 March 2002
Docket NumberNo. 5:00CV00363 SWW.

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194 F.Supp.2d 893
Riley Dobi NOEL, Petitioner,
v.
Larry NORRIS, Director, Arkansas Department of Correction, Respondent.
No. 5:00CV00363 SWW.
United States District Court, E.D. Arkansas, Pine Bluff Division.
March 1, 2002.
Order Certifying Appealability and Amending Opinion April 16, 2002.

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William A. McLean, Walter Craig Lambert, Jennifer Morris Horan, Federal Public Defender's Office, Little Rock, AR, for Petitioner.

Joseph V. Svoboda, Jeffrey A. Weber, AR Atty; Gens. Office, Little Rock, AR, for Respondent.

MEMORANDUM OPINION AND ORDER

SUSAN WEBBER WRIGHT, Chief Judge.


Now before the Court is petitioner's amended petition for writ of habeas corpus [docket no. 30] and respondent's response [docket no. 39]. Also before the Court is

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the motion of respondent to preclude petitioner from calling witnesses prior to compliance with 28 U.S.C. § 2254 [docket no. 38], petitioner's responses [docket nos. 46 & 49], and respondent's reply [docket no. 52].

Respondent contends that petitioner is not entitled to an evidentiary hearing or to call witnesses in support of his habeas corpus petition because his claims are either procedurally defaulted and petitioner has not shown compliance with 28 U.S.C. § 2254(e), or were raised in state court and petitioner has not shown compliance with 28 U.S.C. § 2254(d). Petitioner responds that a hearing is necessary on the following grounds for relief, as set forth in his habeas petition: Ground 2 (Victim Impact Evidence), Ground 3 (Change of Venue), Ground 4 (Improper and Inflammatory Testimony), Ground 5 (False Evidence and/or Argument), Ground 8 (Newly Discovered Evidence), Ground 10 (Newly Discovered Evidence), Ground 141 (Cumulative Effect of Errors), and Ground 15 (Ineffective Assistance of Counsel). Petitioner states that Ground 1 (Mandatory Review of Entire Record by Arkansas Supreme Court), Ground 6 (Improper and Inflammatory Closing Arguments), Ground 7 (Statutory Scheme Unconstitutionally Vague), and Ground 9 (Improper Argument and Questioning) may be resolved on the record alone.

After careful consideration, and for the reasons stated below, the Court finds that petitioner's amended petition for writ of habeas corpus must be denied in its entirety, and respondent's motion to preclude petitioner from calling witnesses prior to compliance with 28 U.S.C. § 2254 must be granted.

I. Background

A brief summary of the facts of this case is as follows.2 On the evening of June 4, 1995, petitioner Riley Dobi Noel, Terry Carroll, Curtis Cochran, and Tracy Calloway went to the home of Mary Hussian in Little Rock. Present in the home that night were Mary Hussian, three of her children: Malak Hussian, age 10; Mustafa Hussian, age 12; and Marcel Young, age 17; and Marcel Young's boyfriend/fiance, Kyle Jones. Petitioner shot the three children in the head as they lay on the floor in the front room of the house. Meanwhile, Terry Carroll attempted to shoot Mary Hussian with a shotgun. The shotgun jammed, however, and Mary Hussian was able to wrestle it away from Terry Carroll. Kyle Jones escaped unharmed through a bathroom window. Much of the incident was recorded when Mary Hussian called 911. It was the state's theory of the case that petitioner committed the murders in retaliation for the death of his brother, Cornelius Gannaway, during the week prior. Petitioner apparently believed that Mary Hussian's eldest daughter, Yashica Young, with whom his brother had a child, had "set up" his brother in a drive-by shooting.

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In July, 1996, following an eleven-day trial in the Circuit Court of Pulaski County, Arkansas, petitioner was convicted of three counts of capital murder and one count of attempted capital murder. Petitioner was sentenced to death by lethal injection on the capital murder convictions and to sixty years on the attempted capital murder conviction. Petitioner appealed, and the Arkansas Supreme Court affirmed his convictions and sentence on January 15, 1998. Petitioner then pursued state post-conviction relief, which was denied. The Arkansas Supreme Court affirmed the denial of post-conviction relief on September 14, 2000. Petitioner then filed a timely petition for writ of habeas corpus with this Court.

II. Standard of Review

28 U.S.C. § 2254 permits a prisoner in state custody to petition a federal court for a writ of habeas corpus "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The extent to which a federal court may actually consider a petitioner's federal claims, however, has been limited by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), as outlined below.

A. Federal Habeas Review of Claims Adjudicated on the Merits in State Court

A petitioner may bring a federal habeas petition to challenge a state court's application of federal law or to challenge a state court's factual findings. Despite this broad statement, a federal court's power to grant a state prisoner's application for a writ of habeas corpus on claims adjudicated on the merits in state court is in fact quite constrained. Terry Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (concurring opinion of O'Connor, J., for the Court). Pursuant to the AEDPA, with respect to any claim adjudicated on the merits in state court, habeas relief shall not be granted unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

1. Challenging the State Court's Application of Federal Law

28 U.S.C. § 2254(d)(1) permits a petitioner to seek relief on the ground that a state court's decision was "contrary to" or an "unreasonable application of" clearly established federal law as determined by the Supreme Court. A state court's decision will be viewed as "`contrary to' clearly established federal law if the state court has applied a rule that directly contradicts Supreme Court precedent or has reached a result opposite to a result reached by the Supreme Court on `materially indistinguishable' facts." Kinder v. Bowersox, 272 F.3d 532, 538 (8th Cir.2001) (citing Terry Williams, 529 U.S. at 405, 120 S.Ct. 1495 (concurring opinion of O'Connor, J., for the Court)). A state court's decision will be viewed as an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the [petitioner's] case." Terry Williams, 529 U.S. at 413, 120 S.Ct. 1495 (concurring opinion of O'Connor, J., for the Court).3 "[A] federal habeas court making

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the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. 1495 (emphasis supplied). "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410, 120 S.Ct. 1495. Thus, a state court's application of federal law might be erroneous, in this Court's independent judgment, yet not objectively unreasonable. Kinder, 272 F.3d at 538.

2. Challenging the State Court's Factual Findings

28 U.S.C. § 2254(d)(2) permits a petitioner to seek relief on the ground that, in light of the evidence before the state court, the state court made an unreasonable determination of the facts. However, the state court's findings are subject to a deferential standard of review. Kinder, 272 F.3d at 538. In particular, a state court's factual determinations are presumed correct unless the petitioner can rebut those findings through "clear and convincing evidence." 28 U.S.C. § 2254(e)(1); James v. Bowersox, 187 F.3d 866, 871 (8th Cir.1999).

B. Federal Habeas Review of Claims Not Adjudicated on the Merits in State Court

A federal court may be prevented from reviewing a petitioner's habeas claims if the petitioner failed to exhaust or procedurally defaulted the claims before the state court. In other words, as a matter of comity and federalism, the state courts should have a proper opportunity to address a petitioner's claims of constitutional error before those claims are presented to the federal court. See Coleman v. Thompson, 501 U.S. 722, 729-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (describing and discussing interplay of exhaustion and procedural default doctrines).

1. Exhaustion of Remedies

Federal habeas relief shall not be granted "unless it appears that the applicant has exhausted the remedies available" in state court. 28 U.S.C. § 2254(b)(1)(A); Krimmel v. Hopkins, 56 F.3d 873, 875-76 (8th Cir.1995). This exhaustion requirement may be excused only if it would be futile for the federal court to require exhaustion; i.e. where there are no available state procedures to be exhausted or where the state procedures are ineffective. 28 U.S.C. § 2254(b)(1)(B)(i)-(ii).

To satisfy the exhaustion requirement, a petitioner must "fairly present" his claims to the state courts. Krimmel, 56 F.3d at 875-76. A claim is "fairly presented" to the state courts, and thus preserved for federal habeas review, when the petitioner has properly raised both the factual and legal premises of the claim in state court proceedings. Krimmel, 56 F.3d at 876. The petitioner must afford the highest state court "a fair opportunity to rule on the factual and theoretical substance of his claim." Id.

"In order to fairly present a federal claim to the state courts, the petitioner must have...

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  • Springs v. Hobbs, No. 5:13CV00005 JLH
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • June 23, 2014
    ...in the course of state post-conviction proceedings. Kilmartin v. Kemna, 253 F.3d 1087, 1088 (8th Cir. 2001); see also Noel v. Norris, 194 F. Supp. 2d 893, 903 (E.D. Ark. 2002).Page 20However, "'only a firmly established and regularly followed state practice' is a procedural bar to federal h......
  • Jackson v. Norris, No. 5:03-CV-00405 SWW.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • January 4, 2007
    ...or when an objective, external impediment prevented counsel from complying with the state's procedural rule. Noel v. Norris, 194 F.Supp.2d 893, 904 (E.D.Ark.2002)(citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). "To demonstrate prejudice, a petitioner mus......
  • Thomas v. Kelley, CASE NO. 6:14-CV-6038
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • March 31, 2017
    ...in the course of state post-conviction proceedings. Kilmartin v. Kemna, 253 F.3d 1087, 1088 (8th Cir. 2001); see also Noel v. Norris, 194 F.Supp.2d 893, 903 (E.D. Ark. 2002). Once a claim is defaulted, the habeas court can only consider the claim if the petitioner can show cause for the def......
  • McGhee v. Maclaren, Case No: 14-cv-14564
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • May 18, 2017
    ...an inadequate ground for granting federal habeas relief, because it is essentially a cumulative errors claim. See e.g. Noel v. Norris, 194 F. Supp. 2d 893, 931-32 (E.D. Ark. 2002); aff'd 322 F. 3d 500 (8th Cir. 2003); cert. den. 124 S. Ct. 13 (2003). Petitioner is therefore not entitled to ......
  • Request a trial to view additional results
10 cases
  • Springs v. Hobbs, No. 5:13CV00005 JLH
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • June 23, 2014
    ...in the course of state post-conviction proceedings. Kilmartin v. Kemna, 253 F.3d 1087, 1088 (8th Cir. 2001); see also Noel v. Norris, 194 F. Supp. 2d 893, 903 (E.D. Ark. 2002).Page 20However, "'only a firmly established and regularly followed state practice' is a procedural bar to federal h......
  • Jackson v. Norris, No. 5:03-CV-00405 SWW.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • January 4, 2007
    ...or when an objective, external impediment prevented counsel from complying with the state's procedural rule. Noel v. Norris, 194 F.Supp.2d 893, 904 (E.D.Ark.2002)(citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). "To demonstrate prejudice, a petitioner mus......
  • Thomas v. Kelley, CASE NO. 6:14-CV-6038
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • March 31, 2017
    ...in the course of state post-conviction proceedings. Kilmartin v. Kemna, 253 F.3d 1087, 1088 (8th Cir. 2001); see also Noel v. Norris, 194 F.Supp.2d 893, 903 (E.D. Ark. 2002). Once a claim is defaulted, the habeas court can only consider the claim if the petitioner can show cause for the def......
  • McGhee v. Maclaren, Case No: 14-cv-14564
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • May 18, 2017
    ...an inadequate ground for granting federal habeas relief, because it is essentially a cumulative errors claim. See e.g. Noel v. Norris, 194 F. Supp. 2d 893, 931-32 (E.D. Ark. 2002); aff'd 322 F. 3d 500 (8th Cir. 2003); cert. den. 124 S. Ct. 13 (2003). Petitioner is therefore not entitled to ......
  • Request a trial to view additional results

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