Snell v. Lockhart, PB-C-89-332.

• Decision Date: 24 April 1992
• Docket Number: No. PB-C-89-332.,PB-C-89-332.
• Citation: 791 F. Supp. 1367
• Parties: Richard Wayne SNELL, Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

791 F. Supp. 1367

Richard Wayne SNELL, Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Respondent.

No. PB-C-89-332.

United States District Court, E.D. Arkansas, Pine Bluff Division.

April 24, 1992.

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Jeff Rosenzweig, Little Rock, Ark., G. William Currier, John J. McAvoy, Harriet Ann Robinson, Beth Haroules, White & Case, Washington, D.C., for petitioner.

Jack Gillean, Deputy Atty. Gen., Darnisa Evans Johnson, Asst. Atty. Gen., Little Rock, Ark., for respondent.

MEMORANDUM AND ORDER

VAN SICKLE, District Judge.

On November 3, 1983, William Stumpp was murdered in the course of a robbery of his pawnshop in Texarkana, Arkansas. On November 1, 1984, Richard Wayne Snell was charged with capital murder in the death of William Stumpp. The trial was conducted before the Honorable Philip Purifoy, Miller County Circuit Court at Texarkana, Arkansas between August 13 and August 15, 1985, resulting in a conviction and a sentence of death by lethal injection. Snell was represented at trial by court-appointed counsel Marshall Moore and Rick Shumaker.

The Arkansas Supreme Court affirmed the conviction and sentence on direct appeal. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), reh'g denied, 723 S.W.2d 1 (per curiam), cert. denied, 484 U.S. 872, 108 S.Ct. 202, 98 L.Ed.2d 153 (1987). Thereafter, the Arkansas Supreme Court denied Snell's petition to proceed in Miller County Circuit Court pursuant to Arkansas Criminal Procedure Rule 37 for post-conviction relief.¹ Snell v. State, No. CR 85-206, 1988 WL 81730 (Ark. Oct. 3, 1988) (per curiam), cert. denied, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989).

On June 16, 1989, Richard Wayne Snell filed a petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254.² On June 19, 1989, the district court granted a stay of execution. An evidentiary hearing was held in Little Rock, Arkansas November 5 through November 8, 1991 and January 21 through January 23, 1992. The petitioner alleges that numerous constitutional errors occurred during his trial which he contends require this Court to set aside the conviction and sentence of death. The petitioner claims that his: (A) Fifth, Sixth, Eighth and Fourteenth Amendment right to an impartial jury in both the guilt and penalty phases of the trial was violated due to pretrial publicity; (B) Sixth and Fourteenth Amendment right to effective assistance of counsel was violated in the guilt and penalty phases of the trial and on direct appeal; (C) Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated by prosecutorial misconduct during the guilt and penalty phases of the trial; (D) First, Fifth, Sixth and Fourteenth Amendment rights to free association, presumption of innocence and a fair and unbiased trial were violated due to the introduction of evidence of the beliefs, aims, crimes, and wrongs of an organization called "The Covenant, The Sword and The Arm of The Lord" (CSA) and; (E) Fifth, Eighth and Fourteenth Amendment rights were violated by the sentencing instructions to the jury. The Court will address each issue in turn.

I. GUILT PHASE

A. Procedural Default

The respondent raises procedural default defenses to the claims of prejudicial CSA evidence and prosecutorial misconduct. The doctrine of procedural default requires the petitioner to "present his federal claims to the state courts in a timely or procedurally correct manner in order to provide the state courts an opportunity to decide the merits of those claims." Kennedy v. Delo, 959 F.2d 112, 115 (8th Cir.1992). The petitioner should present the same factual arguments and legal theories in both the state and federal claims. Kenley v. Armontrout, 937 F.2d 1298, 1302 (8th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991). In the event that the petitioner did not so present his federal claims, "federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, ___ U.S. ___, ___, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). See also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

1. CSA Evidence

The petitioner claims that the admission of evidence regarding the activities of the CSA violated his First, Fifth, Sixth and Fourteenth Amendment rights to free association, a presumption of innocence, and a fair and unbiased trial. The trial court allowed the admission of CSA evidence regarding beliefs, weapons, military training, criminal activities, and an alleged plan to rob a Springfield, Missouri pawnshop. The petitioner's relevancy objections were overruled by the court.

On appeal, the petitioner argued that the CSA evidence was irrelevant, prejudicial and improper under the rules of evidence. First, the petitioner argued that the trial court erred in allowing certain testimony during the state's cross-examination of Tim Russell. The testimony regarded, in part, Russell's grandfather and the grandfather's activities.³ Without citation to any cases, the petitioner argued that the testimony was inadmissible and that the trial court abused its discretion in allowing such testimony.

Second, the petitioner argued that the trial court erred in allowing certain testimony during the state's cross-examination of Bennie Avery. Again, without citation to any cases, the petitioner asserted that the questioning was irrelevant and went beyond the scope of permissible cross-examination. The petitioner next argued that the trial court erred in allowing the testimony of state witness Kent Yates. The petitioner argued, without case citation, that the testimony was irrelevant under the rules of evidence. Fourth, the petitioner argued that the trial court erred in admitting evidence that the petitioner and others planned to rob a Springfield, Missouri pawnshop prior to the Stumpp robbery and murder. The petitioner again urged reversal based upon the rules of evidence. Finally, the petitioner contended that the trial court erred in allowing state witness William Thomas to testify as to CSA crimes. Again, the petitioner sought relief under the rules of evidence. Only in his final sentence did Snell allude to the Constitution. "To deny appellant a new trial as a result of the irrelevant and prejudicial testimony being admitted into evidence would make a mockery out of the due process clause of the United States Constitution." Appellant's Abstract and Brief at 276-277, Snell v. State, 721 S.W.2d 628 (Ark.1986). Pet.Exh. 46.

"It is not enough that all the facts necessary to support the federal claim were before the state courts." Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971)). "Failure to present the same legal theory in state court constitutes a bar to federal habeas corpus review." Johnson v. Armontrout, 923 F.2d 107, 108 (8th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 106, 116 L.Ed.2d 75 (1991). While the petitioner did present the same facts to the Arkansas Supreme Court, it is obvious that he did not present his federal constitutional claims to the Arkansas Supreme Court. The failure to cite any federal case or any constitutional provision other than that mentioned above, "was not a sufficient presentation of the federal constitutional issue." Thomas v. Wyrick, 622 F.2d 411, 413 (8th Cir.1980). The Arkansas Supreme Court cannot be faulted for failing to consider sua sponte the petitioner's federal claims. Picard, 404 U.S. at 277, 92 S.Ct. at 513. Accordingly, since no non-futile state remedies remain, the federal habeas claim concerning CSA evidence is procedurally defaulted unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation. See McDougald v. Lockhart, 942 F.2d 508, 511 (8th Cir.1991); Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir.1988).

The petitioner alleges ineffective assistance of counsel as cause for the default. Ineffective assistance of counsel can be cause for a procedural default. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). However, the petitioner must first show that this claim of ineffective assistance of counsel was presented to the state courts as an independent claim. Murray, 477 U.S. at 489, 106 S.Ct. at 2646. In other words, since the petitioner asserts that defense counsel were ineffective for failing to present federal constitutional arguments to the Arkansas Supreme Court on direct appeal, the petitioner must show that he argued ineffective assistance of counsel on this ground to the Arkansas Supreme Court in his Rule 37 post-conviction petition. The petitioner argued in his Rule 37 petition as follows:

Counsel failed to appeal major constitutional claims, including substantial First, Fifth, Sixth, Eighth and Fourteenth Amendment violations due to ineffective assistance, prosecutorial misconduct and judicial error. Moreover, none of the issues raised on appeal were identified as constitutional violations. Finally, counsel failed to rely on controlling state and federal case law.

Petition For Permission To Proceed Under Criminal Procedure Rule 37 at 63, Snell v. State, No. CR-85-206 (Ark. Oct. 3, 1988) (emphasis added). Pet.Exh. 7. The petitioner has presented this claim of ineffective assistance of counsel to the state court as an independent claim in accordance with Murray.

The question of whether defense counsels' failure to raise federal claims on appeal constitutes ineffective assistance of counsel is controlled by the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner...