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Ward v. Hobbs

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48 views

Ward v. Hobbs

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soforan314
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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No.

12-3586
United States Court of Appeals For the Eighth Circuit

Ward v. Hobbs
738 F.3d 915 (8th Cir. 2013)
Decided Dec 26, 2013

No. 12–3586. the certificate was improvidently granted on the


preliminary question of procedural default alone.
2013-12-26
We therefore dismiss the appeal.
Brian WARD, Plaintiff–Appellant, v. Ray
Ward was charged in Arkansas state court with
HOBBS, Director, Arkansas Department of
one count of rape and one count of second-degree
Correction, Defendant–Appellee.
sexual assault, each involving a different victim.
Walter Craig Lambert, argued, North Little Rock, He pleaded nolo contendere to both counts and
AR, for Appellant. Lauren Elizabeth Heil, AAG, was sentenced to a term of imprisonment. By
argued, Little Rock, AR, for Appellee. pleading nolo contendere, Ward forfeited his right
to appeal the conviction, seeArk. R.App. P.-Crim.
COLLOTON 1(a), and he did not file for post-conviction relief
under Arkansas Rule of Criminal Procedure 37.
After the time for filing under Rule 37 had
Walter Craig Lambert, argued, North Little Rock,
expired, Ward did file a state habeas corpus
AR, for Appellant. Lauren Elizabeth Heil, AAG,
petition in which he attempted to raise a claim of
916 argued, Little Rock, AR, for Appellee.*916
ineffective assistance of trial counsel. Cf. Cothrine
Before LOKEN, , and BENTON, Circuit
v. State, 322 Ark. 112, 907 S.W.2d 134, 135
Judges.
(1995) (explaining that a state writ of habeas
corpus cannot be substituted for postconviction
, Circuit Judge.
relief under Rule 37). An Arkansas circuit court
Brian Ward entered pleas of nolo contendere to denied the state habeas petition as being without
rape and second-degree sexual abuse in Arkansas merit, and there is no record of an appeal.
state court. He later petitioned for a writ of habeas
Ward's subsequent federal habeas petition alleged
corpus in the district court, pursuant to 28 U.S.C.
ineffective assistance of trial counsel, citing two
§ 2254. The district court dismissed the petition
deficiencies in counsel's performance: failure to
with prejudice on two alternative grounds: that
advise him correctly regarding eligibility for
Ward had procedurally defaulted his claims in
parole and failure adequately to investigate his
state court and that the claims lacked merit. The
case such that Ward had no choice but to plead
court then granted a certificate of appealability on
guilty. The district court rejected both claims and
the question of procedural default. Because Ward
dismissed the petition. First, the court ruled that
makes no substantial showing of the denial of a
Ward had procedurally defaulted his ineffective-
constitutional right on the merits, we conclude that
assistance claims by failing to raise them in a
petition under Arkansas Rule of Criminal
Procedure 37. Alternatively, the court rejected the

1
Ward v. Hobbs 738 F.3d 915 (8th Cir. 2013)

claims on the merits. The court saw no substance says that counsel should have arranged testing to
to the claim regarding parole eligibility, because determine whether Ward was infected with a
Ward acknowledged during the plea colloquy that sexually transmitted disease, apparently because
he would be ineligible for parole, so there could be one victim reported some time after the offense
no prejudice from any failure of counsel to advise involving her that she was so infected. As the
him of the same. The court rejected Ward's claim district court observed, however, the proposed
regarding his counsel's failure to investigate, investigation would have had little bearing on
concluding that the alleged deficiencies were whether Ward committed the charged offense. The
inconsequential. Despite having rejected the victim reported seeking treatment for a sexually
claims on the merits, however, the court expressed transmitted disease in 2007, but the charged
uncertainty whether the rationale of Martinez v. offense occurred no later than 2000, so there is
Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d little or no basis to infer a connection between the
272 (2012), would allow Ward to secure equitable victim's disease and Ward's health status in 2000.
relief from his procedural default, and granted Even assuming there were circumstantial evidence
Ward a certificate of appealability on that that the victim was infected by her abuser in 2000,
question. moreover, Ward's health status at the time of the
plea in 2010 likely could not establish his health
Before granting a certificate of appealability on a
status at the time of the offense in 2000.
procedural issue, a district court should determine
“both ‘that jurists of reason would find it Ward also contends that counsel should have
debatable whether the petition states a valid claim inquired into an inconsistency between a
of the denial of a constitutional right, and that detective's investigative notes and the charging
jurists of reason would find it debatable whether documents regarding the dates of the alleged
the district court was correct in its procedural sexual misconduct. But any inconsistency was
ruling.’ ” Khaimov v. Crist, 297 F.3d 783, 785 (8th eliminated when the State orally amended the
Cir.2002) (quoting Slack v. McDaniel, 529 U.S. information at Ward's plea hearing to adjust the
473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 charged time period, and the discrepancy likely
(2000)). The district court did not cite a debatable would have been cured before a trial as well if
question on the merits, and Ward's brief on appeal Ward had elected to proceed. Ward also complains
917 addresses only the issue of procedural default.*917 that counsel failed to pursue the fact that he was
incarcerated during part of the time frame alleged
We conclude that the certificate of appealability
in the original charging documents, but again, the
was improvidently granted because even assuming
information was amended orally at the plea
that Ward's federal claims are not procedurally
hearing to narrow the time frame and thus to
barred, he has not made a substantial showing of
eliminate Ward's asserted alibi. As for advice
the denial of a constitutional right. To prevail on
about parole eligibility, the state court apprised
his claim of ineffective assistance of counsel,
Ward of his ineligibility for parole at the time he
Ward must demonstrate a reasonable probability
pleaded guilty, but Ward elected to proceed
that “but for counsel's errors, he would not have
anyway, so there is no substantial showing of
pleaded guilty and would have insisted on going
prejudice.
to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106
S.Ct. 366, 88 L.Ed.2d 203 (1985). For the foregoing reasons, we conclude that Ward
has not made a substantial showing of the denial
We see nothing in the record to support a
of a constitutional right. Accordingly, the
debatable conclusion that but for counsel's alleged
errors, Ward would have proceeded to trial. Ward

2
Ward v. Hobbs 738 F.3d 915 (8th Cir. 2013)

certificate of appealability was improvidently


granted and is hereby revoked. The appeal is
dismissed.

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