Brown v. Payne

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

DONALD BROWN PETITIONER

CASE NO. 4:20-CV-95-BD

DEXTER PAYNE, Director,

Arkansas Division of Correction RESPONDENT

ORDER

I. Procedural Background:

A. State Court Proceedings

A jury convicted Donald Brown of second-degree murder in the Circuit Court of

Pulaski County, Arkansas. Brown v. State, 2019 Ark. App. 36, 1 (2019). The court

sentenced Mr. Brown to 15 years in prison and added a ten-year enhancement for

committing a homicide in the presence of a child and a five-year enhancement for using a

firearm. Id. The court ordered the five-year enhancement to run concurrently with the

ten-year enhancement; and both enhancements were ordered to run consecutive to the 15-

year sentence, for a total sentence of 25 years. (Doc. No. 8-2 at 115-16)

When Mr. Brown appealed his conviction, he argued that the trial court abused its

discretion by denying his motion for a mistrial after one of the State’s witnesses allegedly

made a comment about gangs during her testimony. Id. The Arkansas Court of Appeals

was unpersuaded and affirmed the conviction. Id.

Mr. Brown brought a timely petition for post-conviction relief under Rule 37 of

the Arkansas Rules of Criminal Procedure. (Doc. No. 8-5 at 1-9) In the petition, he

claimed his trial counsel was ineffective for not calling “key witnesses” to testify to his

innocence. (Doc. No. 8-5 at 6) The trial court granted Mr. Brown an extension of time to

file an amended petition, but he did not amend his petition. On January 6, 2020, the court

denied Mr. Brown’s original petition without a hearing. (Doc. No. 8-5 at 11-14, 26-31)

Mr. Brown did not appeal.

B. Federal Habeas Petition

Mr. Brown filed the pending habeas petition with this Court claiming that his trial

counsel was ineffective for: (1) advising him not to testify; (2) not calling witnesses to

support an alibi defense; (3) failing to investigate and present evidence to contest the

State’s evidence; and (4) failing to adequately cross-examine State’s witness Chamika

Rogers. (Doc. No. 1 at 6-16) He also claims that his appellate counsel was ineffective for

failing to argue that the case should have been quashed based upon the “inflammatory

and prejudicial shirts worn by the deceased’s loved ones.” (Doc. No. 1 at 18)

Respondent Payne argues that the Court should dismiss Mr. Brown’s petition

because his claims are procedurally defaulted, and none of the exceptions excusing

procedural default apply in this case. (Doc. No. 8 at 12-31)

II. Factual Background:

Damon Wilkins lived with his fiancée Chamika Rogers and her four children when

he was shot and killed. The Arkansas Court of Appeals summarized the testimony

presented at trial as follows:

Chamika testified that on the evening at issue, several men, including

[Donald] Brown and Chamika’s nephew, came to her house. According to

Chamika, there were verbal confrontations between Wilkins and both Brown and

her nephew. The men left the scene, and the police arrived at the house shortly

thereafter, having been called there by someone who had seen the altercation and

reported that Wilkins had pulled a gun on someone. The police spoke with

Chamika, and she told them that during Wilkins’s argument with her nephew,

Wilkins had a gun in his pocket but never pulled it out. The police left the scene.

Later that night, the men who had been there earlier, including Brown,

returned to the house. According to Chamika, Wilkins was apologizing to the men

and tried to defuse the situation. Then Chamika’s sister drove up in a truck and

said, “If somebody pulled a gun on my son, I'm going to blow this house up.”

Wilkins walked to the truck and spoke with Chamika’s sister and told her that he

never pulled a gun on anyone. Shortly thereafter, a man in a grey Cadillac drove

up, exited the car, and tossed a gun to Brown. According to Chamika, these two

men proceeded to where Wilkins was standing near the truck and both men shot

him multiple times.

Chamika’s son, E.R., also testified about the shooting. E.R. testified that

before the shooting, Wilkins “kept apologizing, and it didn't work.” E.R. stated

that he saw a [m]an give a gun to Brown, after which Brown started shooting at

Wilkins.

Chamika’s daughter, C.R., testified next.

. . . .

She testified:

When Damon is at my Aunt Tonya's car, I saw another car come up

to our house . . . a little short dude by the name of Doughboy jumped

out the car. Don did a little hands signal or whatever. And he tossed

Don the gun and he creeped around Tonya's truck. And then Damon,

he seen Don coming towards him with a gun. His last words was,

“Hey, bro, don't do that.” And they started shooting him up.

. . . .

After Damon had been shot, Donald Brown left. He jumped in the

grey Cadillac. To my knowledge, Damon did not have a gun in his

hand. He had his in his pocket.

Brown v. State, 2019 Ark. App. 36, 2–5 (2019).

III. Procedural Default:

“[A] state prisoner who fails to satisfy state procedural requirements forfeits his

right to present his federal claim through a federal habeas corpus petition, unless he can

meet strict cause and prejudice or actual innocence standards.” Gordon v. Arkansas, 823

F.3d 1188, 1196 (8th Cir. 2016) (quoting Clemons v. Luebbers, 381 F.3d 744, 750 (8th

Cir. 2004) (citation omitted)). Procedural default bars federal review if the state court did

not hear the claim because the prisoner failed to follow a state procedural rule, Franklin

v. Hawley, 879 F.3d 307, 311 (8th Cir. 2018) (quoting Martinez v. Ryan, 566 U.S. 1, 9

(2012)); or, if the petitioner failed to fairly present the claim in state court, and a state

procedural rule would bar him from bringing the claim if he returned to state court.

Kennedy v. Kemna, 666 F.3d 472, 480 (2012), cert. denied, 568 U.S. 1012 (2012) (a

claim is procedurally defaulted if a petitioner failed to raise it in state proceedings).

A habeas petitioner’s default can be excused, but only in limited circumstances.

The petitioner must demonstrate cause for the default and actual prejudice resulting from

the violation of federal law; or that a failure to consider the claims would result in a

fundamental miscarriage of justice. Franklin, 879 F.3d at 313-14 (quoting Coleman v.

Thompson, 501 U.S. 722, 750 (1991)). Under the cause-and-prejudice standard, cause is

established when some objective factor, external to the defense, impeded efforts to

comply with the state’s procedural rule. Id. at 313 (citing Coleman 501 U.S. at 753).

Bringing a claim without an attorney is not usually deemed cause to excuse

procedural default. Id. The Supreme Court, however, has carved out a limited exception.

See Martinez, 566 U.S. at 1. When a state requires claims of ineffective assistance of trial

counsel to be raised in an initial-review collateral proceeding, as Arkansas does,

procedural default will not bar a federal habeas court from hearing a substantial claim of

ineffective-assistance-of-trial-counsel if, in the initial-review proceeding, the petitioner

was not represented by counsel or if counsel in that proceeding was ineffective. Martinez,

566 U.S. at 17 (emphasis added).

Mr. Brown asserts that his “state remedies are exhausted” (Doc. No. 1 at 4); but he

has procedurally defaulted all his claims. All ineffective-assistance-of-counsel claims

must be brought in a state post-conviction petition under Rule 37 of the Arkansas Rules

of Criminal Procedure; and, Mr. Brown was obligated to appeal the denial of claims

rejected by the trial court in order to exhaust state remedies.

Mr. Brown raised only one claim in his post-conviction (Rule 37) petition; i.e.,

that his lawyer was ineffective for failing to “call any of [his] key witnesses to testify” to

his “innocence.” Mr. Brown did not fully exhaust this ineffective-assistance claim

because he did not appeal the trial court’s denial of his Rule 37 petition. (Doc. No. 8-5 at

6) Accordingly, Mr. Brown must establish cause and prejudice or actual innocence before

the Court can address the merits of his constitutional claims.

A. Cause and Prejudice

Mr. Brown asserts that he exhausted his state remedies, so he does not specifically

address cause or prejudice or actual innocence to excuse his default. The Court,

nonetheless, will address both exceptions.

To the extent Mr. Brown might assert that he was entitled to counsel at the post-

conviction, initial review proceeding under Martinez, and that deprivation of counsel at

that proceeding establishes cause and prejudice, that theory fails. The Martinez Court did

not reverse the rule announced in Coleman v. Thompson, 501 U.S. 722, 752 (1991), i.e.,

that there is no constitutional right to an attorney in state post-conviction proceedings.

Martinez, 566 U.S. at 8. Mr. Brown did not have a constitutional right to counsel; thus,

his lack of counsel is not valid “cause” to excuse his default. Franklin, 879 F.3d at 313.

Mr. Brown has not come forward with any objective factor external to the defense

that impeded his efforts to comply with the state’s post-conviction process so as to excuse

the procedural default of his claims. Accordingly, the Court need not address prejudice.

McCleskey v. Zant, 499 U.S. 467, 502 (1991).

B. Martinez

The Court may also not apply the Martinez exception to any of Mr. Brown’s

ineffective-assistance claims, either because the claims fall outside the limited Martinez

exception or because they are not substantial.

To prevail on his ineffective-assistance-of-counsel claims, Mr. Brown must show:

(1) that his trial counsel’s performance was so deficient that it fell below an objective

standard of the customary skill and diligence displayed by a reasonably competent

attorney; and (2) that there is a reasonable probability that the outcome would have been

different but for the substandard performance of his trial counsel. Strickland v.

Washington, 466 U.S. 668, 687-94 (1984). A reasonable probability is one that is

sufficient to undermine confidence in the outcome of the trial. Wiggins v. Smith, 539 U.S.

510, 534 (quoting Strickland, 466 U.S. at 694). The Court’s scrutiny of counsel’s

performance is highly deferential; and there is a strong presumption that counsel’s

conduct fell within the “wide range of reasonable professional judgment.” Forrest v.

Steele, 764 F.3d 848, 853 (8th Cir. 2014) (citing Strong v. Roper, 737 F.3d 506, 517 (8th

Cir. 2013) quoting Bucklew v. Luebbers, 436 F.3d 1010, 1016 (8th Cir. 2006)).

Mr. Brown asserts that his trial lawyers were ineffective for advising him not to

testify. This claim is not substantial. Recognizing that Mr. Brown could raise such a post-

conviction claim, trial counsel asked the trial court to question Mr. Brown, on the record

and out of the jury’s presence, about his decision not to testify. Mr. Brown testified under

oath that, after discussing the matter with his attorneys, it was his desire not to testify on

his own behalf. (Doc. No. 8-2 at 703)

Mr. Brown complains that counsel was ineffective for not calling witnesses to

support his alibi defense. He raised this claim in his Rule 37 petition but failed to appeal

the trial court’s denial of relief. Unfortunately for Mr. Brown, the Martinez exception to

procedural default does not extend to errors in appeals from the initial review collateral

proceeding. Martinez, 566 U.S. at 16; see also Franklin v. Hawley, 879 F.3d 307, 313

(8th Cir. 2018) (holding that the Martinez exception does not apply when the petitioner

failed to perfect his appeal of the state trial court’s denial of relief).

Mr. Brown maintains that his trial lawyer was ineffective for failing to investigate

and present evidence to contradict testimony presented by the State. Specifically, he

states that if trial counsel had called witnesses to testify: that the t-shirt he wore was

white, not red; that his phone was not at the crime scene; that he was right handed; that he

drives a Lincoln, not a Cadillac; and that he has a physical disability that prevents him

from jumping; the jury might have acquitted him. (Doc. No. 1 at 9-17)

This claim is not substantial for several reasons. First, in response to questioning

from the trial judge, Mr. Brown stated on the record that he did not wish to call any

witnesses in his defense. (Doc. No. 8-2 at 703) In any event, a defense lawyer’s decision

not to call any witnesses is typically a matter of trial strategy and is presumed to be the

product of a reasoned decision-making process. U.S. v. Orr, 636 F.3d 944, 955 (8th Cir.

2011). Moreover, Mr. Brown has not come forward with any names of witnesses whom

counsel could have located and called to testify. And finally, the evidence Mr. Brown

points to goes to the credibility of the testimony the State’s witnesses at trial. He has not

established that a different trial strategy would have changed the outcome of the trial.

Mr. Brown claims that his trial lawyer was ineffective for failing to adequately

cross-examine the State’s witnesses. After reading the record, the Court cannot agree.

Defense counsel vigorously cross-examined the State’s witnesses. Further the extent of a

lawyer’s attempts to impeach a witness is generally a matter of trial strategy that is left to

counsel’s discretion. Dansby, 766 F.3d. at 835. The claim is not substantial.

Finally, Mr. Brown claims his lawyer in the direct appeal of his conviction was

constitutionally ineffective. This claim fails, because the Martinez exception does not

apply to claims of ineffective assistance of appellate counsel. Davila v. Davis, __ U.S. __,

137 S. Ct. 2058, 2065 (2017).

Mr. Brown’s petition does not raise a substantial claim of ineffective assistance of

counsel that would trigger the Martinez exception.

C. Actual Innocence

Mr. Brown generally maintains his innocence; and he may suggest that the

procedural default of his federal, constitutional claims should be excused because he is

innocent. (#10 at 30-59) To establish a miscarriage of justice adequate to overcome a

procedural bar, however, a petitioner must come forward with new evidence to support a

claim of actual innocence. Nash v. Russell, 807 F.3d 892, 898 (8th Cir. 2015) (citing

Schlup v. Delo, 513 U.S. 298 (1995)) (emphasis added).

The Supreme Court has cautioned that “tenable actual innocence gateway pleas

are rare,” holding that a petitioner, “must show that it is more likely than not that no

reasonable juror would have convicted him in the light of the new evidence.” Id. at 386

(quoting Schlup, 513 U.S. at 327). In other words, this Court must decide whether Mr.

Brown has overcome his procedural default by presenting “evidence of innocence so

strong that the court cannot have confidence in the outcome of the trial unless the court is

also satisfied that the trial was free of nonharmless constitutional error.” Schlup, 513 U.S.

at 316.

To fall under the actual-innocence exception, a habeas petitioner must come

forward with “new reliable evidence” that was “not available at trial through the exercise

of due diligence.” Schlup, 513 U.S. at 324; Kidd v. Norman, 651 F.3d 947, 953 (8th Cir.

2011), cert. denied, 568 U.S. 838 (2012). For evidence to be considered new, it must have

been both unavailable at trial and not discoverable through the exercise of due diligence.

Nash v. Russell, 807 F.3d 892, 899 (8th Cir. 2015) (quoting Amrine v. Bowersox, 238

F.3d 1023, 1028 (8th Cir. 2001)) (emphasis added). Reliable evidence may be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial. Kidd, 651 F.3d at 951–52 (quoting Schlup, 513

U.S. at 324).

Mr. Brown has not come forward with any new reliable evidence that would allow

the Court to apply the actual-innocence exception to procedural default. He has not

attached reliable, scientific evidence of his innocence or affidavits of witnesses that

would allegedly testify to his innocence. Further, the witness testimony that Mr. Brown

points to in his petition was all available to him at the time of trial.

Even if Mr. Brown could demonstrate that his allegations constitute new, reliable

evidence, the allegations are insufficient, in the light of eye-witness testimony presented

at trial, for this Court to conclude that no rational juror would have convicted him. In

other words, even if Mr. Brown had presented all his “exculpatory” evidence, a rational

juror could still have convicted him by crediting the State’s witnesses and not believing

his evidence and witnesses. See Dansby, 766 F.3d at 817 (proffered evidence insufficient

to meet actual innocence threshold, because the new evidence was aimed at undermining

the credibility of a prosecution witness; and impeachment evidence, “‘will seldom, if

ever,’ make a clear and convincing case that no reasonable jury could believe the core of

the witness’s account.” (quoting Sawyer v. Whitley, 505 U.S. 333, 349 (1992)).

IV. Certificate of Appealability:

When entering a final order adverse to a petitioner, the Court must issue or deny a

certificate of appealability. Rule 11 of the Rules Governing Section 2254 Cases in the

United States District Court. The Court can issue a certificate of appealability only if Mr.

Brown has made a substantial showing that he was denied a constitutional right. 28

U.S.C. § 2253(c)(1)-(2). In this case, Mr. Brown has not provided a basis for this Court to

issue a certificate of appealability. Accordingly, a certificate of appealability is denied.

V. Conclusion:

Mr. Brown’s claims are procedurally defaulted, and he has not established cause

and prejudice or actual innocence to overcome his default. Accordingly, Mr. Brown’s

petition for writ of habeas corpus (Doc. No. 1) is DISMISSED, with prejudice. A

certificate of appealability is DENIED, and his request for bail pending habeas review is

DENIED, as moot.

IT IS SO ORDERED, this 13th day of April, 2020.

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