Travis v. Hobbs, Case No. 5:11-CV-00119 JTK
| Decision Date | 09 July 2012 |
| Docket Number | Case No. 5:11-CV-00119 JTK |
| Parties | KENNY TRAVIS, JR., ADC # 119406 Plaintiff, v. RAY HOBBS, Director, Arkansas Department of Correction Defendant. |
| Court | U.S. District Court — Eastern District of Arkansas |
BEFORE THE COURT is Petitioner Kenny Travis, Jr.'s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, filed on May 13, 2011. Doc. No. 2. All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). Doc. No. 27. After reviewing all of the relevant materials, the Court finds that that the petition should be DENIED.
On June 24, 2005, Petitioner, Kevin Ransom, and Acquilla Ramsey went to J.W. Hall's auto dealership under the pretense that they were going to sell Hall a videotape of his mistress having sex with another man. When they arrived, Petitioner and Ransom entered Hall's office and demanded money. Petitioner then shot Hall in the leg and asked him where the safe was. Some form of altercation ensued, and Hall was shot in the upper body and head. Hall subsequently died from his injuries. Petitioner later confessed his crime during a car ride to Memphis with Andre Love, and Love recorded the confession on his cell phone.
Petitioner was convicted of capital murder and aggravated robbery by a jury in the Mississippi County (Arkansas) Circuit Court on August 11, 2006. He was sentenced to life imprisonment without the possibility of parole and ten years' imprisonment, respectively. Petitioner subsequently appealed his conviction to the Arkansas Supreme Court, arguing that the trial court erred by 1) denying his motion for a continuance or for a mistrial based on Ransom's testimony that there was a different copy of Love's voice recording, 2) denying his Batson challenge to the State's exclusion of jurors, 3) refusing to allow admission of several phone conversations, 4) refusing to allow him to perform a voice recording demonstration on Love's cell phone in order refute that the recording was made on his phone, and 5) denying his motion in limine concerning introduction and reference to Love's cell phone and voice recording. His conviction was affirmed on December 6, 2007. Travis v. State, 371 Ark. 621, 269 S.W.3d 341 (2007).
On January 18, 2008, Petitioner sought postconviction relief pursuant to Ark. R. Crim. P. 37.1, arguing that 1) his trial counsel was ineffective, 2) the prosecutor withheld the coroner's report, 3) the jury convicted him of a murder and robbery that took place on the day after the information indicated the crimes occurred, 4) he was subjected to double jeopardy because the two offenses overlapped, and 5) the prosecutor used coerced and perjured testimony. That petition was denied on February 20, 2008. Petitioner appealed the decision to the Arkansas Supreme Court,1 arguing that 1) the lower court erred by denying his Rule 37 petition without an evidentiary hearing and 2) the court's order did not contain findings of fact as required byArkansas Rule of Criminal Procedure 37.3. The court held that the lower court's failures were excusable because the petition was meritless, and Petitioner's appeal was denied on September 23, 2010. Travis v. State, 2010 Ark. 341, 2010 WL 3719967 (per curiam). Respondent admits that Petitioner is in his custody and that there are no unexhausted, non-futile state remedies available.
Petitioner argues that he is entitled to relief because 1) the trial court erred by failing to grant a continuance or mistrial, 2) the trial court erred by denying his Batson challenges, 3) the trial court erred by excluding the taped conversations between Ramsey and Travis, 4) the trial court erred by refusing to allow him to demonstrate a voice recording with Love's cell phone, 5) the trial court erred by denying his motion in limine, 6) his trial counsel was ineffective, and 7) the State committed prosecutorial misconduct. For the reasons discussed below, these claims are either procedurally barred, meritless, or both.
Respondent contends that Petitioner's first, third, fourth, and fifth claims are not cognizable because he has failed to raise any issues of federal law. Federal courts may only entertain applications for habeas corpus from persons in state custody based on grounds that they are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'" Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)).
Petitioner's first ground is primarily based on perceived violations of the Arkansas Rules of Criminal Procedure, and there does not appear to be any jurisdictional basis for entertaining such an argument.2 The third claim refers to the "Rules of Evidence," and the Court will assume for the sake of argument that he is referring to the Federal Rules of Evidence. The fourth and fifth grounds are based entirely on state law; thus, the Court cannot review them.
Requests for federal habeas relief must be based on arguments of federal law, but petitioners must also present those federal arguments to the state courts. "[W]e traditionally demand that a habeas petitioner have presented 'the same legal theories and factual bases to the state courts.'" Wyldes v. Hundley, 69 F.3d 247, 251 (8th Cir. 1995) (quoting Pollard v. Armontrout, 16 F.3d 295, 297 (8th Cir. 1994)). "At minimum, though, the petitioner during direct appeal must have explicitly referred the state courts to the United States Constitution or federal case law." Id. (citing Luton v. Grandison, 44 F.3d 626, 628 (8th Cir. 1994)); see also Carney v. Fabian, 487 F.3d 1094, 1096-97 (8th Cir. 2007) (); Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam) (); McDougald v. Lockhart, 942 F.2d 508, 510 (8th Cir. 1991) ().
The third ground for Petitioner's direct appeal was based on the trial court's perceived violation of Arkansas Rules of Evidence 607 and 613 when it refused to allow several tapedconversations to be played for the jury. It does not appear that Petitioner put the state courts on notice that he was making any federal arguments, so this claim is procedurally defaulted. Further, Petitioner's argument is barred by the "independent and adequate state ground doctrine." Coleman v. Thompson, 501 U.S. 722, 729 (1991).
The three conversations at issue took place between Ramsey, Petitioner's girlfriend and co-defendant, and Ann Travis, Petitioner's aunt. In these conversations, Ramsey apparently told Travis that she had lied or misrepresented the truth because she had been threatened by Betty Thompson, an officer with the Osceola Police Department. Petitioner attempted to introduce tapes of the conversations, but the court refused to allow their admission. The court's reasons for that ruling are unknown because the in-chambers conference where the ruling was made is not contained within the record. Petitioner alleges that the court's ruling was based on the fact that Ramsey had already impeached herself when she admitted to making these statements during her testimony. However, Petitioner argues that Ramsey's admission was insufficient impeachment because she qualified her admission by saying that the statements were made in response to Travis's coercive threats to withhold Ramsey's children. Thus, Petitioner contends that the tapes should have been played because they would have provided more effective impeachment by demonstrating Thompson's coercion and the lack of coercion from Travis.
Petitioner's argument was rejected by the Arkansas Supreme Court because the lack of any record meant that there was no way to determine the rationale behind the ruling, whether there was any objection to the ruling, or whether arguments concerning Rules 607 or 613 were ever raised before the trial court. The court held that the lack of any proof in the record meant that the argument was precluded because it was being raised for the first time on appeal."Because this Court has no power to review a state law determination that is sufficient to support the judgment, resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory." Coleman, 501 U.S. at 729.
Petitioner failed to obtain rulings for his fourth and fifth grounds for relief, and the Arkansas Supreme Court ruled that he failed to properly preserve these issues for appeal. Thus, these arguments are barred from federal review by an independent and adequate state ground.
The seventh ground for relief, which contends that the State committed prosecutorial misconduct by failing to provide the coroner's report, is also barred because it was not properly presented to the Arkansas courts. This argument was only presented in Petitioner's Rule 37 petition, and the Arkansas Supreme Court rejected it because such a claim is not cognizable in a Rule 37 proceeding. "[W]e ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts." O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). To meet the fair presentation requirement, "state prisoners must give the state courts one full opportunity to resolve any...
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