Ray Eugene McDaniel v. Larry Norris, Acting Director, Arkansas Department of Corrections

38 F.3d 385

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 5, 1995
• Docket: 93-2884
• Status: Published

Opinions

BOWMAN, Circuit Judge.

The District Court granted Ray Eugene McDaniel a writ of habeas corpus, and the state of Arkansas appeals. We reverse.

I.

In 1986, McDaniel climbed through the drive-through window of a Wendy’s restaurant after the main dining area had closed. He grabbed a non-employee who was helping close the restaurant and made a long cut on his throat with a knife. McDaniel then grabbed a manager, wrapped his arm around her neck, and pressed the knife into her back. McDaniel made clear to his two victims his demands for money. When another employee entered the area, McDaniel ordered him to open the register. When that employee told McDaniel he did not know how to open the register, and the manager stated that the money already had been removed from the register, McDaniel herded all three victims into a back rpom, and then took a set of keys from the manager and approximately $300 from the restaurant.

In 1987 an Arkansas jury convicted McDaniel of three counts of aggravated robbery and one count of theft of property based upon this conduct. McDaniel was sentenced to serve forty years in prison. McDaniel’s convictions were affirmed, McDaniel v. State, 294 Ark. 416, 743 S.W.2d 795 (1988), and his attempt to gain state postconviction relief was unsuccessful.

McDaniel later sought federal habeas relief. He alleged that he had intended to steal only from Wendy’s, and thus that his actions constituted a single continuous course of conduct that would support but one aggravated robbery conviction. Therefore, he concluded, the state had violated his double jeopardy rights by convicting him of three counts of aggravated robbery. He relied on Wheat v. State, 297 Ark. 502, 763 S.W.2d 79, 80 (1989) (per curiam), for support. The state argued inter alia that McDaniel’s double jeopardy claim was proeedurally barred because he never raised it in state court. The District Court granted the writ and ordered that McDaniel be resentenced on one count of aggravated robbery. The state appeals.

II.

The parties agree that McDaniel’s double jeopardy claim is proeedurally defaulted because he failed to raise it in state court. A procedural default may be excused so that a federal habeas court will consider the merits of the prisoner’s claim if the prisoner shows cause for the default and prejudice from the alleged violation of federal law. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). The District Court concluded that McDaniel had not shown cause and prejudice, and McDaniel does not challenge this ruling on appeal.

Alternatively, a prisoner who is unable to show cause and prejudice still may obtain federal habeas review of the merits of his claim if he is able to show that the fundamental-miscarriage-of-justice exception applies. This exception applies only if the prisoner is factually — not just legally — innocent of the crime of which he was convicted. Sawyer v. Whitley, — U.S.—,—, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992); Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir.1992). Under the Sawyer standard, which this Circuit has held applies to guilt determinations, McCoy v. Lockhart, 969 F.2d 649, 651 (8th Cir.1992), a court will reach the merits of the constitutional claim “only where the habeas petitioner demonstrates by clear and convincing evidence that, but for the alleged constitutional error, no reasonable juror would have found the petitioner guilty of the crime of which he was convicted.” Wallace v. Lockhart, 12 F.3d 823, 827 (8th Cir.1994).

McDaniel claims he is actually innocent of his robbery convictions, save one, because he did not intend to steal from anyone but Wendy’s. Under Arkansas law, however, one commits aggravated robbery by threatening or using force to take property from another, even if the property did not belong to the victim, and even if the robbery attempt was unsuccessful. See McKinzy v. State, 313 Ark. 334, 853 S.W.2d 888, 889 (1993); Robinson v. State, 303 Ark. 351, 797 S.W.2d 425, 425-26 (1990).

McDaniel has made nothing more than a bald assertion that he did not intend to take property (even that belonging to Wendy’s) from each of the three victims he encountered at Wendy’s. This is not a clear and convincing showing of actual innocence. To the contrary, the evidence the state offered at McDaniel’s trial demonstrates that McDaniel made it clear to each of his victims that he wanted money, and there is no indication he was overly concerned about its source. The record thus shows that McDaniel clearly did far more than simply “h[o]ld [the victims] at bay,” as McDaniel suggests in his brief, Brief for Appellee at 11, and as happened in Wheat, 763 S.W.2d at 80. We conclude that McDaniel has fallen far short of making the showing of actual innocence necessary for us to reach the merits of his constitutional claim.¹

III.

Because McDaniel has not met the standard required for a showing of actual innocence, the District Court erred in reaching the merits of McDaniel’s procedurally barred constitutional claim and in granting McDaniel habeas relief. The judgment of the District Court is reversed.

1 . Our disposition of this case on procedural bar grounds makes it unnecessary for us to consider the state's arguments that Wheat v. State, 297 Ark. 502, 763 S.W.2d 79 (1989) (per curiam), announced a new rule, the application of which is barred on federal habeas review by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and that the District Court erroneously construed Wheat as applying in this case.