Pearson v. Norris, 94-3128

Decision Date10 April 1995
Docket NumberNo. 94-3128,94-3128
PartiesMarvin Gene PEARSON, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

D. Franklin Arey, III, Conway, AR, argued, for appellant.

Olan W. Reeves, Asst. Atty. Gen., Little Rock, AR, argued, for appellee.

Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.

PER CURIAM.

This is a habeas corpus case. The state of Arkansas argues that petitioner's constitutional claims of ineffective assistance of counsel have been procedurally defaulted. The district court agreed. We reverse and remand.

I

In November of 1990, an Arkansas state court jury found petitioner, Marvin Gene Pearson, guilty of kidnapping, burglary, aggravated assault, terroristic threatening, and fleeing. At that time, the sole avenue in Arkansas for seeking relief based on ineffective assistance of counsel was to file a motion for a new trial after the trial court's judgment. See In re Abolishment of Rule 37, etc., 299 Ark. 573, 770 S.W.2d 148 (1989) (adopting this procedure as ARK.R.CRIM.P. 36.4 (hereafter Rule 36.4)). Pearson passed up that opportunity. His conviction was affirmed in November 1991. Pearson v. State, 307 Ark. 360, 819 S.W.2d 284 (1991).

Effective January 1, 1991, Arkansas adopted a rule requiring ineffective assistance claims to be brought after a convict's direct appeal ended. In re Reinstatement of Rule 37, etc., 797 S.W.2d 458 (Ark.1990). Therefore, at the time of Pearson's conviction, Arkansas's sole avenue for raising ineffective assistance claims was to file a motion for a new trial directly after conviction; by the time his conviction was affirmed on appeal, the sole avenue had shifted to a post-appeal petition. ARK.R.CRIM.P. 37 (hereafter Rule 37).

The state contends that Pearson should have known he could file for relief based on ineffective assistance of counsel after his direct appeal ended and that he is therefore procedurally barred from having his ineffective assistance claim considered on federal habeas.

Pearson argues that he believed the rule change gave him no second chance to raise his ineffective assistance claim after his appeal ended. Pearson believed that he had already passed up his only chance to raise such a claim by failing to move for ineffective assistance-based relief directly after conviction. There is now no dispute that Pearson would have been entitled to a second bite at the apple had he timely moved for ineffective assistance relief after his appeal ended. Pogue v. State, 316 Ark. 428, 872 S.W.2d 387, 388 (1994). (We note that the dicta in Burk v. State, 313 Ark. 652, 856 S.W.2d 14 (1993), stating that a petitioner like Pearson was not entitled to a second-chance Rule 37 remedy has been supplanted by the explicit contrary holding in Pogue.) The bone of contention is not whether Pearson had a right to proceed under new Rule 37, but rather when he should have known of this right.

The state does not contend that the new Rule 37 or the Arkansas Supreme Court directive adopting it alerted those convicts with appeals pending on the rule's effective date of their new post-appeal remedy. Rather, the state contends that Pearson was notified of his post-appeal rights by two Arkansas Supreme Court decisions handed down before Pearson's own conviction was affirmed in November of 1991. Matthews v. State, 305 Ark. 207, 807 S.W.2d 29 (1991); Brown v. State, 305 Ark. 53, 805 S.W.2d 73 (1991). The state asserts that those cases put Pearson on notice as to his post-appeal Rule 37 remedy more than seven months before his conviction was affirmed. Pearson, on the other hand, argues that the first solid indication that he had a post-appeal remedy came in the March 1994 Pogue decision. (Pearson filed the instant action eighteen days after Pogue without approaching the Arkansas courts.)

In a recent case arising from the same Arkansas rule change, we held that federal review could not be barred where a habeas petitioner was apprised of a remedy only by a state court decision which simultaneously established that the deadline for that remedy had passed. Easter v. Endell, 37 F.3d 1343 (8th Cir.1994). To be sure, there is no constitutional right to appeal convictions. Id. at 1345. But where direct appeal or another avenue of collateral attack is created by the state, it must conform to due process standards. Id. Only state rules firmly adopted or established when a criminal defendant must resort to them are adequate to support a federal court's decision opting not to review federal constitutional claims; state procedural barriers which a criminal defendant could not be fairly expected to know of cannot bar federal review. Id. at 1345-46 (citing Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991), and other cases). (A federal court's option not to review hinges not only on whether the state rule is adequate, but also whether it is independent; there is no question that Rule 37 is an independent state ground. Id. at 1345.)

Thus, the question in this case resolves to whether or not Brown and Matthews firmly established a rule that convicts whose direct appeals were pending when new Rule 37 became effective could avail themselves of it. If these cases did lay out the rule as the state contends, then Pearson was properly apprised of the rule before it applied to him, and the state procedural bar is adequate to support the district court's decision to deny federal review; but if, as Pearson asserts, the rule was not firmly established until Pogue--that is to say years after Pearson was required to resort to it--it will not be adequate to bar federal review of the merits of his claim.

In Matthews, the Arkansas Supreme Court ruled that Matthews, who failed to insist that the trial court rule on his Rule 36.4 motion for a new trial, did not properly preserve his ineffective assistance of counsel claim for appeal. A footnote was added which in its entirety reads:

We again note that, effective January 1, 1991, the court reinstated Rule 37, in revised form. That revised rule provides, in pertinent part, that if an appeal was taken of the judgment of conviction, a petition, claiming post-conviction relief, must be filed in circuit court...

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6 cases
  • Cox v. Norris
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • September 27, 1996
    ...failure to raise this claim in a Rule 37 petition, this argument is foreclosed by the Eighth Circuit's decision in Pearson v. Norris, 52 F.3d 740 (8th Cir.1995). As has already been discussed, petitioner was convicted while the prior version of Rule 36.4 was in effect, but his conviction wa......
  • State v. Richards
    • United States
    • Wisconsin Court of Appeals
    • October 17, 1996
    ...denied, 517 U.S. 1150, 116 S.Ct. 1452, 134 L.Ed.2d 570 (1995); Forgy v. Norris, 64 F.3d 399, 401-03 (8th Cir.1995); Pearson v. Norris, 52 F.3d 740, 742-43 (8th Cir.1995); Cochran v. Herring, 43 F.3d 1404, 1410-12 (11th Cir.1995), modified on denial of reh'g, 61 F.3d 20 (11th Cir.1995), cert......
  • Lee v. Kemna
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 13, 2000
    ...was not a "firmly established rule when it was applied to Easter." Id. at 1346. This court reiterated that conclusion in Pearson v. Norris, 52 F.3d 740 (8th Cir. 1995), As in Easter, the state has not demonstrated that Pearson was put on notice that he had a Rule 37 remedy before his filing......
  • Reagan v. Norris, 00-1195.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • February 5, 2002
    ...court ... even if the conviction occurred during the time period when former Rule 36.4 was in effect." Id. at 388. In Pearson v. Norris, 52 F.3d 740 (8th Cir.1995), we cited Pogue as authority for the proposition that "[t]here is now no dispute that Pearson would have been entitled to a sec......
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