William James Nims, Jr. v. Warden John Ault

251 F.3d 698, 2001 U.S. App. LEXIS 11601, 2001 WL 604308

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 5, 2001
• Docket: 99-4331
• Status: Published

Opinions

BEAM, Circuit Judge.

William Nims appeals from the district court’s¹ denial of his 28 U.S.C. § 2254 petition. We affirm.

1. PROCEDURAL HISTORY

Nims was convicted of kidnapping and sexually abusing an eight-year-old girl in Iowa in May 1983. At trial, Nims did not dispute the fact that he kidnapped and sexually assaulted the girl, but instead relied upon a diminished capacity defense. The Iowa Supreme Court affirmed the conviction, State v. Nims, 357 N.W.2d 608 (Iowa 1984), and the Iowa Court of Appeals affirmed the denial of Nim’s application for post-conviction relief, Nims v. State, 401 N.W.2d 231 (Iowa Ct.App.1986).

In 1990 Nims filed a federal habeas corpus petition challenging the admission of hearsay evidence, and raising an Eighth Amendment and ineffective assistance of counsel claims. The petition was denied on the merits in August 1991. While an appeal of that denial was pending before this court, Nims’ habeas counsel became aware of potential juror misconduct,² and asked this court to remand the case to the district court so that he could file an amended petition raising this claim. We dismissed the appeal without prejudice in February 1992 and remanded the case to the district court.

On remand, Nims filed an amended petition that included the juror misconduct claim. Nims had not yet exhausted this claim in state court, however, so the district court dismissed the amended petition without prejudice, leaving Nims free to fully exhaust his state remedies and to refile the amended petition at a later date. Although Nims attempted to exhaust this claim in state court, the state post-conviction court denied the application as untimely under Iowa’s three-year statute of limitations. See Iowa Code § 822.3. The post-conviction court determined that the alleged juror misconduct occurred at trial, and therefore could have been raised in a timely manner on direct appeal or in the first post-conviction proceeding. The post-conviction court was affirmed by the Iowa Court of Appeals in January 1998. Nims v. State, No. 7-597/96-2114 (Iowa Ct.App. Jan. 28, 1998). Nims filed this current habeas petition on May 27, 1998.³

The district court denied the petition and found that the alleged juror misconduct claim was procedurally defaulted because it had never been adjudicated by the state court. The district court reasoned that because the juror misconduct occurred during voir dire, this claim was known to Nims at the time of trial, and no cause existed to excuse the procedural default. The district court issued a certificate of appealability on this issue.

II. DISCUSSION

Iowa law requires post-conviction claims be brought within three years from the date the conviction or decision is final, unless there is a ground of fact or law which could not have been raised within the applicable time period. Iowa Code § 822.3. The state courts which reviewed Nims’ juror misconduct claim concluded Nims did not meet the exception to the three-year limitation because the issue was raised following habeas counsel’s examination of the trial transcript, which had been in existence since 1983. Nims v. State, No. 7-597/96-2114, slip op. at 2. The Iowa Court of Appeals further found that a contention developed during post-trial discovery that the juror had spoken with his wife about the trial was not a ground of fact or law which could not have been raised within the three-year time period. This was because under Iowa law, to qualify as such a ground, the evidence must be likely to change the result of the case. Id. at 4 (citing Dible v. State, 557 N.W.2d 881, 884 (Iowa 1996)). The court found Nims had not produced evidence that any such discussions between the juror and his wife would have changed the result of the trial, and hence could not qualify for the exception to the three-year statute of limitations. Nims, slip op. at 4.

Thus, the Iowa state courts have applied Iowa Code § 822.3 to bar consideration of Nims’ post-conviction federal juror misconduct claim. Nims’ claim was dismissed by the state courts on independent and adequate state law grounds, and this particular state procedural rule is firmly established and regularly followed. See Wyldes v. Hundley, 69 F.3d 247, 252 (8th Cir.1995).⁴ Nims’ claims are therefore proeedurally defaulted and we cannot consider them unless Nims can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or show that failure to consider the claim will result in a fundamental miscarriage of justice because he is actually innocent of the crime. Weeks v. Bowersox, 119 F.3d 1342, 1350 (8th Cir.1997). Nims does not assert actual innocence, but instead argues he can demonstrate the necessary cause for and prejudice from the default.

To show cause for his failure to raise this claim in state post-conviction proceedings, Nims must show that some objective external factor impeded him from complying with Iowa’s three-year statute of limitations. O’Rourke v. Endell, 153 F.3d 560, 567 (8th Cir.1998). An “external” factor is one which is not fairly attributable to the petitioner. Ivy v. Caspari, 173 F.3d 1136, 1140 (8th Cir.1999). This external factor need not necessarily be attributable to the state, but if it is not, it must explain why the factual basis for the claim was reasonably unavailable. Id. at 1141. See also, Joubert v. Hopkins, 75 F.3d 1232, 1242 (8th Cir.1996) (“Interference by the state, ineffective assistance of counsel, and conflicts of interest are examples of factors external to the defense which prevent a petitioner from developing the factual basis of his claim.”) Cf. McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (in successive writ cause and prejudice analysis “[f]or cause to exist, the external impediment, whether it be government interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim”).

Nims asserts the juror’s lack of candor at voir dire was the external factor causing the default. He argues that it is not simply the juror’s answering “No” to the question “Will you be fair” which denied his right to a fair trial, but instead that the juror withheld information that he had discussed the case with his wife and had already formed an opinion that whoever committed this crime should be severely punished. However, it is the “No” answer which triggered habeas counsel’s inquiry into the matter, and this information (that the juror in question would possibly not be fair) was available to Nims from the time of trial forward. This anomaly in the transcript was available to Nims following the trial in 1983. No circumstances changed from the time when the jui'or answered “No” at voir dire to the time habeas counsel discovered the error and deposed the juror. Furthermore, based on the juror’s “No” answer to the question, “Will you be fair,” this juror was arguably being candid. Where the petitioner has access to the information necessary to make his claim in state court, the failure to develop the claim will not constitute cause. El-Tabech v. Hopkins, 997 F.2d 386, 389 (8th Cir.1993). Thus, Nims cannot establish that an objective external factor impeded him from complying with Iowa’s three-year statute of limitations.

Moreover, Nims cannot establish prejudice. To establish prejudice, Nims must show that the alleged misconduct not only created a possibility of prejudice, but that it worked to his actual and substantial disadvantage, thereby infecting the trial with constitutional error. Luton v. Grandison, 44 F.3d 626, 628 (8th Cir.1994). The petitioner must also show, at the very least, that absent the alleged constitutional violation, there is a reasonable probability the outcome of the case would have been different. Cf. Strickland v. Washington, 466 U.S. 668, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); compare Mercer v. Armontrout, 864 F.2d 1429, 1434 (8th Cir.1988) (noting prejudice needed to overcome procedural default is “not dissimilar to Strickland's prejudice test for ineffective assistance of counsel”) with Zinzer v. Iowa, 60 F.3d 1296, 1299 n. 7 (8th Cir.1995) (opining in dicta that “actual prejudice” required to surmount procedural bar is an even higher standard than the Strickland prejudice).

In his deposition, the juror in question testified that his wife agreed with opinions he shared with her during the trial. The juror did not speak to other jury members before deliberation or to anyone else during the trial. Because the juror’s wife did not attempt to influence him during their discussions and he did not speak to anyone else, and because ample evidence supported the conviction, Nims cannot demonstrate that the trial was infected with constitutional error or that the outcome likely would have been different absent the alleged juror misconduct.

III. CONCLUSION

We conclude that the district court did not err in finding that Nims’ claims were procedurally defaulted. Accordingly, we affirm the judgment of the district court.

1 . The Honorable Michael J. Melloy, United States District Judge for the Northern District of Iowa, adopting the Report and Recommendation of United States Chief Magistrate Judge John A. Jarvey.

2 . During voir dire, a prospective juror (who was later empaneled) was asked "[w]ill you be fair?” The trial transcript indicates the juror answered, "[n]o.”

3 . Even though the parties seemed to agree at oral argument that this case was not governed by the amendments to the habeas corpus act, the Antiterrorism and Effective Death Penalty Act (AEDPA), our case law indicates that since this case was filed after AEDPA’s effective date, the case is governed by AEDPA. See Weaver v. Bowersox, 241 F.3d 1024 (8th Cir.2001). Regardless, AEDPA did not substantively change the procedural default cause and prejudice analysis which we employ here. See Villegas v. Johnson, 184 F.3d 467, 470 (5th Cir.1999) (Congress enacted AEDPA "against a backdrop of ... procedurally barred claims” yet chose not to alter this legal landscape) (citing Souch v. Harkins, 21 F.Supp.2d 1083, 1087-88 (D.Ariz.1998)).

4 . Nims does not attempt to argue that the statute of limitations in section 822.3, which procedurally barred review of his claim at the state level, is not firmly established or regularly followed. Cf. State v. Edman, 444 N.W.2d 103, 105-06 (Iowa Ct.App. 1989) (relevant section was amended in 1984 to add three-year statute of limitation to limit post-conviction litigation "in order to conserve judicial resources”); see also, McKee v. Nix, 995 F.2d 833, 837 (8th Cir.1993) (recognizing and enforcing Iowa’s section 822.3 bar to review).