Opinion
No. C98-2045.
March 19, 1999.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to defendant's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order dated March 11, 1999, this matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the petition be dismissed.
In this case, the defendant stands convicted of first degree kidnaping under Iowa Code §§ 710.2 and 902.1 (1981). He abducted and sexually abused an eight-year-old girl. In his petition, Nims claims that relief should be granted because (1) hearsay statements were admitted over his objection at trial that deprived him of Due Process of law and (2) juror misconduct deprived the petitioner of his Sixth Amendment right to a fair and impartial jury.
Hearsay-Due Process Claim
Petitioner abducted the eight-year-old girl on her way to school. The abduction was witnessed by the girl's friend who was walking to school with her that day and by a woman who resided nearby. The woman was able to get petitioner's license plate as he drove away. Still, petitioner was able to take his victim to a secluded spot where he attempted vaginal and rectal penetration of the girl. When she complained that these acts hurt, the petitioner put her back in his vehicle and drove away. The police were then able to find the petitioner, stop his vehicle, and place him under arrest.
An hour and a half later, the victim made a statement in her home to a police officer. The child's detailed statement of the events that transpired were then testified to by the police officer at trial. The victim also testified to these events and was described by the Supreme Court of Iowa as articulate and obviously effective. The case was defended on the theory of diminished capacity.
The defendant contends that the admission of these statements denied him Due Process of law. The State contends that this Due Process claim has never been presented to the Supreme Court of Iowa and is barred by procedural default. The requirement of exhaustion of state remedies generally prevents prisoners from making constitutional claims in federal habeas proceedings unless they have first been fairly presented to the state court. Picard v. Connor, 404 U.S. 270 (1971). As the Supreme Court stated in Duncan v. Henry, 513 U.S. 364 (1995):
If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court but in state court.Id., supra at 365-6.
In order for a claim to be "fairly presented" to the State courts, a petitioner is required to refer to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue. Presenting a claim that is merely similar to the federal habeas claim is not sufficient to satisfy the "fairly presented" requirement. Barrett v. Acevedo, ___ F.3d ___, 1999 WL 118437 (8th Cir. March 9, 1999) (en banc).
In Barrett, the defendant had vigorously asserted in state court that the admission of alleged hearsay evidence deprived him of an opportunity for cross-examination. In a reply brief to the Iowa Supreme Court, he argued "the future of the right to confrontation which is guaranteed by the Sixth Amendment of the United States Constitution . . . will be severely jeopardized and subject to abuse." The Court of Appeals, sitting en banc, stated that it was not inclined to believe that Barrett's claim had been "fairly presented" to the state court but decided not to reach this difficult question in light of the fact that the merits of the constitutional claim were easier to decide.
These facts are not found in the Eighth Circuit March 9, 1999, en banc decision. They can be found in the panel decision at 143 F.3d 449, 454 (8th Cir. 1998).
The question as to whether Nims fairly presented his constitutional claim to the state court is not so close. In order to demonstrate that he presented the constitutional question to the State court, he simply states "the hearsay admitted was so prejudicial that the due process violation was obvious." Petitioner's reply brief at p. 2. This court has examined all of the petitioner's filings before the Iowa Courts. At trial, petitioner objected solely on the basis of "hearsay." On appeal, there was no argument about the defendant's inability to cross-examine but the issues were solely limited to whether the statements of the police officer were hearsay and fell within an exception to the hearsay rule. Pursuant to Duncan v. Henry, supra, this evidentiary issue was not fairly presented to the state courts as a federal constitutional claim. Petitioner failed to exhaust this issue and it is now procedurally defaulted.
Probably because the victim testified and was subjected to cross-examination.
Petitioner does not attempt to otherwise excuse the procedural default.
Hearsay Claim — The Merits
The Supreme Court of Iowa found that the admission of the police officer's testimony to be harmless error. In a habeas corpus case, the court should apply the more deferential harmless error review standard of Brecht v. Abrahamson, 507 U.S. 619 (1993), to constitutional errors that have been subject to harmless error analysis by state courts. Barrett v. Acevedo, supra. Under this standard, the petitioner must show that the hearsay evidence had a substantial or injurious effect or influence on the jury's verdict.In this case, the defendant does not allege a Confrontation Clause violation but rather the more general violation of Due Process of law. In federal habeas corpus proceedings, state evidentiary issues are reviewable only when the asserted error infringed a specific constitutional protection or was so prejudicial as to deny Due Process. Griffin v. Delo, 33 F.3d 895 (8th Cir. 1994). Due Process is denied when the error is gross, conspicuously prejudicial, or of such import that the trial was fatally infected. Id. The Eighth Circuit Court of Appeals has ruled that this Due Process standard mandates a greater showing of prejudice than is necessary to support a finding of plain error on direct appeal. Id.
Petitioner's claim should fail on the merits for the following reasons. First, in addition to the police officer, the victim herself testified and her testimony was consistent with her earlier statement in all material respects. Second, the victim was subjected to cross-examination. Third, the events were also the subject of testimony by two other eyewitnesses. Finally, the case was defended on the theory of diminished capacity. Under these circumstances, any error in admitting this hearsay did not fatally infect the trial and was neither gross nor conspicuously prejudicial. This ground for relief should be rejected.
Juror Misconduct — Procedural Default
During voir dire, a prospective juror, Lowell Jorges, was examined. He stated that he was not familiar with the case, that there was nothing about the type of crime involved that bothered him, and that he did not have any particular strong feelings one way or another that would prevent him from weighing the evidence appropriately. Finally, he was asked
* Can you be fair?
* Yes.
* Will you be fair?
* No.
According to the limited transcript information available to the court, this final response was not pursued and ultimately Jorges was selected as a juror in the case. Apparently, the issue was not raised as a challenge for cause. The defendant did not appeal any issue concerning juror Jorges and did not include it in his initial application for post-conviction relief. Petitioner's first federal habeas claim was denied by the Honorable David R. Hansen in August of 1991. While the appeal from that decision was pending in December of 1991, the petitioner filed a motion to dismiss the appeal and remand the matter to the district court. In that motion, petitioner raised for the first time the issue concerning juror Jorges' "no" response to the last question cited above.
In 1992, the deposition of juror Jorges was taken in which it was revealed for the first time that Jorges was aware of the case before serving on jury duty, that he had strong feelings about the nature of the case, and that he had to some extent prejudged the defendant's guilt. Petitioner dismissed his federal court habeas claim and attempted to exhaust the juror misconduct claim in a state post-conviction relief action. However, the application was denied as untimely. Accordingly, the claim has been procedurally defaulted.
A federal habeas court may consider a petitioner's procedurally defaulted claim if the petitioner establishes both cause for and prejudice from his default. Wainwright v. Sykes, 433 U.S. 72 (1977). To establish cause, a petitioner must show that some objective factor external to the defense prevented him from presenting or developing the factual or legal basis of his constitutional claim. Murray v. Carrier, 477 U.S. 478 (1986). 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. Joubert v. Hopkins, 75 F.3d 1232, 1242 (8th Cir. 1996).
To establish cause, petitioner must show something beyond the control of post-conviction counsel, like state interference, actually prevented post-conviction counsel from raising the claims and presenting the evidence in state court. Zeitvogel v. Delo, 84 F.3d 276, 279 (8th Cir. 1996). Where the petitioner has access to the information necessary to make his claim before the state court, the failure to develop the claim will not excuse procedural default. El-Tabech v. Hopkins, 997 F.2d 386, 389 (8th Cir. 1993).
As noted above, objective external factors that may constitute cause include interference by officials that makes compliance with a state's rules impracticable, or a showing that the factual or legal basis for a claim was not reasonably available to counsel. Krimmel v. Hopkins, 56 F.3d 873, 877 (8th Cir. 1995). The absence of a transcript cannot be cause for procedural default where counsel simply failed to pursue it. Id. Lack of production of information by state officials is not cause excusing procedural default if the information the officials failed to produce is reasonably available through other means. Zeitvogel, supra, at 279-80. Similarly, the state's failure to produce a police report does not constitute cause where the petitioner was aware of the information in the report and simply failed to discuss it with his attorney. Battle v. Delo, 19 F.3d 1547, 1553 (8th Cir. 1994).
Where the factual basis for the defendants claim was known to the defendant at a time when he could have brought a state post-conviction relief action, there cannot be cause for the procedural default. Bannister v. Delo, 100 F.3d 610, 625 (8th Cir. 1996). Counsel must be diligent in pursuing such claims in state court. If not, there is not cause for procedural default. George v. Angelone, 100 F.3d 353, 364 (4th Cir. 1996).
In Weeks v. Bawersox, 106 F.3d 248 (8th Cir. 1997), the court found that a prisoner's illiteracy and pro se status do not constitute cause for procedural default. Nor does a judge's failure to delineate every feature of a state's post-conviction relief constitute cause. Id. In Weeks, the court stated that although the state court should have explained state rules with extra care to the petitioner due to his illiteracy, it neither misled him nor prevented him from learning about an applicable time limit. The court found that the defendant was given enough information so that if he simply asked his trial attorney or literate fellow inmate, the petitioner could have easily discovered the requirements of state law. Accordingly, the petitioner failed to demonstrate cause.
Petitioner Nims has similarly failed to establish cause. He claims that cause is established by juror Jorges' lack of candor at trial. However, juror Jorges was extremely candid when he responded to a question that informed the parties that he would not be a fair juror. That was enough for diligent counsel to pursue.
In his subsequent deposition, Jorges stated that it was his intention to answer the question in the affirmative, that is, intending to portray himself as able and willing to be fair. However, the subsequent testimony is irrelevant because the answer to the question was actually "no." Counsel had access to the information necessary to make this claim in a timely fashion.
No state official interfered with petitioner's ability to pursue the claim of juror misconduct. The December 1991 motion to dismiss the appeal and remand to the district court filed by the petitioner shows that the information causing counsel to seek to remand was the exact same information that the petitioner possessed at the time of his trial. This information was known to the petitioner at his trial and could have been pursued in state court within the next three years, as easily as it was pursued in 1991 and 1992. In sum, there is no objective external impediment that prevented the petitioner from timely making this claim in state court. Petitioner has failed to demonstrate cause for his procedural default.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, petitioner's request for writ of habeas corpus be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).