Michael Clay v. Larry Norris

485 F.3d 1037, 2007 U.S. App. LEXIS 9366, 2007 WL 1201753
Court of Appeals for the Eighth Circuit·Decided April 25, 2007·No. 06-1157·Published·Cited by 9 cases

Opinion

BENTON, Circuit Judge.

Michael A. Clay was convicted of rape in Arkansas. AricCode Ann. § 5-14-103. After an unsuccessful appeal addressing insufficiency of the evidence, he sought post-conviction relief for ineffective assistance of counsel. Ajrk. R.Crim. P. 37.1(a)(i). The trial court rejected his petition on the merits. On March 7, 2002, the Supreme Court of Arkansas refused to accept Clay’s brief because his “abstract is deficient” and he “failed to include the order denying his Rule 37 petition in his addendum.” See Ajrk. Sup. Ct. R. 4-2(a)(5), (8). The court gave him 15 days “to file a substituted abstract, Addendum, and brief to conform to Rule 4-2.” See Ark. Sup. Ct. R. 4-2(b)(3). On rebriefing, Clay included the missing order, but “failed to abstract material parts of the record.” Specifically:

Within his argument, appellant [Clay] refers to comments made by the prosecutor at the original trial and to events occurring at the sentencing hearing. *1039 Appellant has not, however, abstracted any portion of the sentencing hearing nor has appellant adequately abstracted material portions of his original trial. Appellant has failed to comply with our abstracting requirements and has failed to demonstrate prejudice. It is the appellant’s burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that which is abstracted.

The Supreme Court of Arkansas affirmed the denial of the petition for post-conviction relief on May 9, 2002.

Clay next sued for a writ of habeas corpus in district court 1 , claiming insufficiency of the evidence and ineffective assistance of counsel. See 28 U.S.C. § 2254(d)(1). The court dismissed his first claim on the merits, and the second because he did not follow the abstracting rule. Clay appeals only the ineffective assistance claim, arguing the “Arkansas rules on abstracting are applied in a stan-dardless manner, and as such do not create a valid procedural bar to Federal review in habeas corpus proceedings.” He requests “this case be reversed and remanded for consideration of his substantive ineffective assistance of counsel claims.” This court reviews “the district court’s findings of fact for clear error and its conclusions of law de novo.” Cagle v. Norris, 474 F.3d 1090, 1095 (8th Cir.2007).

A federal court “is prohibited from reviewing an issue that the state court has resolved on an adequate and independent state ground, including procedural default.” Winfield v. Roper, 460 F.3d 1026, 1036 (8th Cir.2006). “In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism.” Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Otherwise, “habeas would offer prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court’s jurisdiction and a means to undermine the state’s interest in enforcing its laws.” Id. at 730-31, 111 S.Ct. 2546.

Further, “a state prisoner’s federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims.” Id. at 731, 111 S.Ct. 2546. Also grounded in comity and federalism, “the exhaustion doctrine is principally designed to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Id. (quoting Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)). A “habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of the opportunity to address those claims in the first instance.” Id. at 732, 111 S.Ct. 2546.

These two doctrines work together. A habeas petitioner who defaults a federal claim in state court satisfies the exhaustion requirement: thereafter, the state courts are closed to him. See id. Without the independent and adequate state ground doctrine, “habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claim in state court. The independent and adequate state ground doctrine ensures that the States’ interest in correcting their own *1040 mistakes is respected in all federal habeas cases.” Id.

But “only a firmly established and regularly followed state practice” is a procedural bar to federal habeas review. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). “[S]tate procedural rules not strictly or regularly followed may not bar our review.” Dixon v. Dormire, 263 F.3d 774, 781 (8th Cir.2001) (quoting Ford, 498 U.S. at 424, 111 S.Ct. 850). Clay contends that “there is no established standard in Arkansas for what abstracting circumstances are required for dismissal of an ‘inadequately’ abstracted brief.” Rather, precedent is “a hodgepodge of decision making, remarkable for its fluctuating standards.” Clay concludes that in Arkansas, “an insufficient abstract (whatever that is) precludes appellate review except when it doesn’t.”

Clay fails to show that the abstracting rule “is not a consistently applied state rule.” In Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997), Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993), and Kirby v. State, 52 Ark.App. 161, 915 S.W.2d 736 (1996)&emdash;cases Clay cites&emdash;the missing materials were irrelevant to the merits of the claims. But Clay “failed to abstract material parts of the record” relevant to his ineffective-assistance-of-counsel claim. And in Finney v. State, 2001 WL 1452153, *1 (Ark. Nov.15, 2001), the appellant&emdash;on rebriefing, like Clay&emdash;-“failed to abstract material parts of the record,” leaving the court with “no way of resolving the issues raised in appellant’s brief challenging counsel’s alleged ineffective performance.” As with Clay, the supreme court affirmed the denial of Finney’s Rule 37 petition.

In Taylor v. Norris, 401 F.3d 883, 886 (8th Cir.2005), this court held the Arkansas abstracting rule is an “independent and adequate state law ground[]” to bar federal habeas review. The Rule states,

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Michael Clay v. Larry Norris, 485 F.3d 1037, 2007 U.S. App. LEXIS 9366, 2007 WL 1201753 (8th Cir. 2007).

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