Sherron v. Norris, 95-1265

Decision Date14 November 1995
Docket NumberNo. 95-1265,95-1265
Citation69 F.3d 285
PartiesRoger Dale SHERRON, Appellant, v. Larry NORRIS, Interim Director, Arkansas Department of Correction, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

James H. Phillips, Little Rock, Arkansas, argued, for appellant.

Olan Warren Reeves, Assistant Attorney General, Little Rock, Arkansas, argued, for appellee.

Before WOLLMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

WOLLMAN, Circuit Judge.

Roger Dale Sherron appeals the district court's 1 denial of his petition for a writ of habeas corpus. Sherron raises claims of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and violation of his due process and confrontation clause rights in his convictions of first degree murder and first degree battery. We affirm.

I. Factual and Procedural Background

On the night of July 10, 1983, Sherron, armed with a handgun, went to see his estranged wife, Carolyn, who was staying with Holly Gregory Ashley and Holly's then-boyfriend, David Ashley. Holly testified that Sherron and Carolyn went into the bedroom to talk privately; fifteen minutes later she heard Carolyn "scream a little bit," followed immediately by the sound of a gunshot. Sherron then emerged from the bedroom with the gun, told Holly that she had "messed up everything," and ordered her to take off her clothes. Holly grabbed the gun; they struggled and the gun discharged, the bullet missing them both. Holly testified that Sherron then struck her repeatedly with the gun and that he pointed the gun at her and pulled the trigger several times, the gun not firing. After being severely beaten, Holly eventually escaped and ran to a neighbor's house for help.

Sherron's version of the facts was somewhat different. He testified that he brought the gun to Holly's house only to protect himself from David Ashley, a man with a history of violence, and that at no time did he intend to kill his wife. According to Sherron, he and Carolyn were in the bedroom seriously discussing a reconciliation when Holly interrupted them and demanded that Sherron leave. Sherron stated that he became angry with Holly because he and Carolyn were in the middle of an intimate conversation and Holly's interruption put an end to his attempts at reconciliation. He pulled the gun intending to force Holly to leave the house. Carolyn grabbed his arm to stop him. During the ensuing struggle the gun went off, the bullet hitting and killing Carolyn.

Sherron did not deny beating Holly. He stated that he remembered hitting her only once and that he was simply attempting to leave to get help because there was no telephone in the house. After Holly left, Sherron returned to his apartment and called his brother, Eddie, telling Eddie that he was going to commit suicide. Eddie talked him out of doing so, whereupon Sherron then called the police.

Dr. Fahmy Malak, the medical examiner who examined Carolyn's body shortly after the shooting, indicated in his autopsy report that he found gunpowder residue and a cylindrical deposit of trace metal on Carolyn's left hand. Sherron's counsel stipulated to the reading of Dr. Malak's report to the jury in lieu of Dr. Malak's in-court testimony. Trial counsel neither looked at Dr. Malak's file nor interviewed him personally. At the habeas evidentiary hearing, Dr. Malak testified that his findings regarding gunpowder residue and trace metal deposits were consistent with Sherron's testimony that Carolyn's hand was on or near the gun when it was fired.

The State called two police officers, Tony Bradley and Irvin Shelton, as witnesses to describe Carolyn Sherron's body. Officer Bradley told the jury that the "left side of her face had been beaten and bruised." Defense counsel objected on the ground that this was a conclusion, but failed to obtain a ruling on the objection. On cross-examination, counsel elicited testimony from Bradley to clarify that the "bruises" were limited to the area immediately surrounding the bullet wound. Officer Shelton then testified that when he saw Carolyn's body "she had large bruises" and that "she had some bruises along the facial area, and I believe there were one or two to the right side of her head." On cross-examination, defense counsel unsuccessfully attempted to elicit an admission from Shelton that the only bruises on Carolyn's body were those immediately surrounding the wound.

After cleaning Carolyn's body, Dr. Malak took pictures that showed that she had no bruises. The jury did not see these pictures.

In an offer of proof after the jury commenced deliberations, Eddie Sherron testified that his brother had called him on the night of the shooting and said that he had just shot Carolyn and that "he didn't mean to." According to Eddie, Sherron went on to explain that he pulled out the gun to scare Holly into leaving but that Carolyn grabbed the gun and it went off. He further testified that his brother threatened to kill himself because he "didn't have nothing else to live for after his wife was dead." The trial court ruled that Eddie could have testified that he had received a phone call and that his brother sounded upset and was crying, but could not have testified to the substance of the conversation. Because defense counsel had offered only the specific testimony and not the fact of the phone call, Eddie was not allowed to testify.

The jury found Sherron guilty of first degree murder and first degree assault and sentenced him to life imprisonment for the murder and to twenty years for the battery. Sherron retained new counsel to handle his direct appeal. The only argument raised by appellate counsel was that the trial court erred in refusing to instruct the jury on the lesser-included offense of negligent homicide. The Arkansas Supreme Court affirmed the convictions. Sherron v. State, 285 Ark. 8, 684 S.W.2d 247 (1985), and denied Sherron's pro se petition for state post-conviction relief. Sherron v. State, No. CR 84-138, 1987 WL 10020 (Ark. Apr. 27, 1987).

II. Procedural Default

We find that three of Sherron's four claims have been procedurally defaulted. Sherron failed to raise his ineffective assistance of appellate counsel, due process, and confrontation clause claims in state court. We will not review claims that appear for the first time in a federal habeas petition unless the petitioner can show adequate cause for his failure to raise them in the state proceedings and actual prejudice from the alleged constitutional violations, or if he can demonstrate that failure to review a claim would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991); Krimmel v. Hopkins, 56 F.3d 873, 876 (8th Cir.1995).

Sherron argues that his pro se status, coupled with the refusal of the state court to grant him access to the trial transcript, is sufficient cause to excuse his procedural default. Sherron sought a copy of the transcript at the time he filed his state post-conviction petition to enable him to "further prepare and amend" his petition. The Arkansas Supreme Court denied Sherron's request because he failed to show a specific need for the transcript. Sherron v. State, No. CR 84-138, 1987 WL 10020 (Ark. Apr. 27, 1987).

We have held that pro se status standing alone is insufficient to establish cause for a procedural default. Scroggins v. Lockhart, 934 F.2d 972, 975 (8th Cir.1991); Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir.1988). Moreover, we have held that the unavailability of a trial transcript does not constitute sufficient cause if the prisoner failed to show that the issues on appeal were nonfrivolous and that the transcript was required to decide the issues. Smith v. Lockhart, 882 F.2d 331, 334 (8th Cir.1989) (citing United States v. Lewis, 605 F.2d 379, 380 (8th Cir.1979)), cert. denied, 493 U.S. 1028, 110 S.Ct. 739, 107 L.Ed.2d 757 (1990). Because Sherron failed to make this required showing, the Arkansas Supreme Court permissibly denied his transcript request. Thus, Sherron has not established cause to excuse his procedural default.

Sherron's failure to show cause makes a determination of prejudice unnecessary. Hence, we turn to the narrow actual innocence exception to the cause and prejudice requirement. To fall within the actual innocence exception, a petitioner must establish "that it is more likely than not that, but for the constitutional error claimed, 'no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.' " Fairchild v. Norris, 51 F.3d 129, 130 (8th Cir.) (quoting Schlup v. Delo, --- U.S. ----, ----, 115 S.Ct. 851, 868, 130 L.Ed.2d 808 (1995)), cert. denied, --- U.S. ----, 115 S.Ct. 2562, 132 L.Ed.2d 815 (1995). See also Battle v. Delo, 64 F.3d 347, 352 (8th Cir.1995); Whitmore v. Avery, 63 F.3d 688, 689-90 (8th Cir.1995). Having reviewed each of Sherron's three defaulted claims, we find that the new evidence offered is equivocal, at best. None of Sherron's claims, even if proved, would establish that it is more likely than not that, but for the constitutional error, no reasonable juror would have found him guilty of first degree murder. Thus, the actual innocence exception is inapplicable, and so we turn to the merits of the only remaining claim, ineffective assistance of trial counsel.

III. Ineffective Assistance of Trial Counsel

In arguing that his trial counsel was ineffective, Sherron points to five errors. First, counsel unreasonably and inexplicably agreed to stipulate to the introduction of...

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