Opinion
No. C97-2060.
February 3, 1999.
ORDER (Doc. No. 18) and REPORT AND RECOMMENDATION (Doc. No. 1)
I. INTRODUCTION
Petitioner Ricky Earnest Peeples ("Peeples") filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 22, 1997 (Doc. No. 1). The respondent (the "state") filed an answer to the petition on November 14, 1997 (Doc. No. 8). On November 19, 1997, by order of the Honorable Mark W. Bennett, this matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) for the filing of a report and recommended disposition of the motion (Doc. No. 9). The state filed a Motion to Rule on Petitioner's Petition Based on the Record on March 27, 1998 (Doc. No. 14), and renewed the motion on June 16, 1998 (Doc. No. 16). On June 19, 1998, the court granted the state's motion (Doc. No. 17). The court makes the following findings of fact and conclusions of law.
II. FACTUAL PROCEDURAL BACKGROUND
Police officers from Waterloo, Iowa arrested Peeples on January 27, 1991, after investigating a call from the clerk of a convenience store. The clerk, Dave Allen Rutledge ("Rutledge"), told the police that Peeples entered the store and started an altercation. Ignoring Rutledge's demands that he leave, Peeples reached under his coat toward the small of his back as if reaching for a gun and threatened to shoot Rutledge. When Rutledge saw what he thought was the butt of a gun, he grabbed a pipe to defend himself. A struggle over the pipe ensued with Peeples ultimately running outside while grabbing cigarettes and empty bottles on his way. Peeples threw one of the bottles at the store's front door and threw another at Rutledge. Peeples then threatened to kill Rutledge. After the threat, Peeples raised his arms and leveled them at Rutledge as if pointing a gun. Rutledge turned to run, fell, and heard a gunshot. Rutledge believed Peeples attacked him because Rutledge gave a report to the police implicating Peeples in a previous disturbance that took place outside the convenience store.
The state charged Peeples with first-degree burglary and attempted murder. Peeples waived his right to a trial by jury and a bench trial commenced on August 7, 1991. At trial, one of the state's key pieces of evidence was a videotape taken by the convenience store's security camera. The videotape corroborated much of Rutledge's story except that the position of the camera prevented a definitive picture of whether or not Peeples possessed a gun. Further, because the attempted shooting took place outside the store, it was not captured on tape. Other evidence introduced by the state included a bullet found after a search of Peeples's apartment, and a statement by Peeples that although he heard a gunshot fired at the time of the altercation, he did not fire the shot.
Peeples relied on an intoxication defense to the specific intent crimes of first-degree burglary and attempted murder. He testified that he had no recollection of the incident due to the fact that he and some friends had consumed three one-fifth bottles of liquor over a three-hour period. Peeples also presented witnesses who testified that they were present at the time of the incident but did not hear a gunshot. He presented another witness, a computer programmer, who testified that after enhancements of the videotape he was unable to spot a weapon.
The Honorable James C. Bauch filed his findings of fact and verdict on August 20, 1991, finding Peeples guilty on both charges. On September 11, 1991, Judge Bauch sentenced Peeples to concurrent twenty-five year prison terms. On February 2, 1993, the Iowa Court of Appeals affirmed his conviction, but reserved the issue of ineffective assistance of counsel for postconviction proceedings. The Iowa State Supreme Court denied further review of Peeples' case on April 2, 1993. Peeples then filed a postconviction relief application ("PCR application") on July 15, 1993. The PCR application was denied by the Iowa District Court for Black Hawk County on February 6, 1995. On October 25, 1996, the Iowa Court of Appeals affirmed the district court's denial of Peeples's PCR application, holding that Peeples had failed to preserve for review the arguments he raised in his appeal. The instant section 2254 petition followed.
III. LEGAL ANALYSIS A. Section 2244(d)(1) Statute of Limitations
Peeples filed his petition for writ of habeas corpus on July 22, 1997. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), effective on April 24, 1996, therefore governs Peeples's petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Before the court can address Peeples's substantive claims, he must clear the initial procedural hurdle put in place by the AEDPA, a one-year statute of limitations on petitions for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; . . .28 U.S.C. § 2244(d)(1) (West Supp. 1998).
The AEDPA, however, does not address how the one-year deadline applies to prisoners convicted before the AEDPA but who have filed a section 2254 petition after the effective date. Reading the AEDPA literally, Peeples's petition would be time-barred. The Iowa Supreme Court denied his application for further review of his direct appeal on April 2, 1993. Adding on the time allowed for Peeples to file a petition for writ of certiorari from the United States Supreme Court, ninety days, means Peeples's conviction became final on July 1, 1994, and his section 2254 petition would have been due on July 1, 1995. See Smith v. Bowersox, No. 98-2358, 1998 WL 726756, at *2, (8th Cir. (Mo.)) (in cases where defendant does not seek certiorari, section 2244(d)(1)(A) statute of limitations begins to run upon conclusion of all direct criminal appeals in state system followed by expiration of time allotted for filing petition for writ); see also U.S.Sup.Ct. Rule 13. A literal interpretation of the AEDPA would time-bar Peeples's July 22, 1997 petition.
The Eighth Circuit Court of Appeals also has not directly addressed this situation. See Nichols v. Bowersox, Nos. 97-3639, 97-3640, 1998 WL 151380, at *2 (8th Cir. (Mo.)) (noting parties and district court assumed that deadline to file section 2254 petition for prisoners convicted before AEDPA was April 23, 1997, but deciding not to address the issue). Several other circuits, however, have spoken on the issue, and have held that an otherwise time-barred section 2254 petitioner can have a "reasonable" length of time to file such motions, either one year from the effective date of the AEDPA or one year from the day following the effective date of the AEDPA. See Ross v. Artuz, 150 F.3d 97, 101 (2nd Cir. 1998); Burns v. Morton, 134 F.3d 109, 111 (3rd Cir. 1998); Brown v. Angelone, 150 F.3d 370, 374-75, (4th Cir. 1998); Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998); O'Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998); Calderon v. United States District Court for the Central District of California, 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998); Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 210, ___ L.Ed.2d ___ (1998); Wilcox v. Florida Department of Corrections, No. 97-4681, 1998 WL 754549, at *1, (11th Cir. (Fla.)). Nevertheless, even if the Eighth Circuit were to follow these other circuits, Peeples's petition would still be time-barred because he filed it on July 22, 1997, almost three months after the end of the reasonable length of time allowed by the other circuits.
However, the AEDPA also provides that:
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(2) (West Supp. 1998). Only a few circuits have addressed whether this section tolls the section 2244(d)(1)(A) one-year statute of limitations for petitioners whose convictions became final before the effective date of the AEDPA, whose section 2254 petitions were filed after the AEDPA effective date, but who, at one time or another, had pending state postconviction proceedings. The circuits addressing the issue have held that section 2244(d)(2) tolls the statute of limitations for such petitioners. See Fields v. Johnson, No. 98-10012, 1998 WL 754901, at *3, (5th Cir. (Tex.)); Hoggro v. Boone, 150 F.3d 1223, 1225-27 (10th Cir. 1998); see also Lovasz v. Vaughn, 134 F.3d 146, 148-49 (3rd Cir. 1998). Thus, the court must answer the following questions before deciding if Peeples's petition is time-barred:
(1) Even though a literal reading of the AEDPA's one-year statute of limitations would mean Peeples's petition is time-barred, should this court follow the numerous circuits that have given otherwise time-barred petitioners a reasonable length of time after the effective date of the AEDPA in which to file their section 2254 petitions?
(2) If this court answers the first question affirmatively, should it also extend the tolling provisions of section 2244(d)(2) of the AEDPA to petitioners such as Peeples whose conviction became final before the effective date of the AEDPA, whose petition was filed after the effective date, but who had state postconviction proceedings pending at one time or another?
The court answers the first question affirmatively, relying upon the reasoning of the numerous cases cited supra that grant a petitioner in Peeples's situation a reasonable time in which to file their section 2254 petitions. See Block v. North Dakota ex rel. Board of University and School Lands, 461 U.S. 273, 286 n. 23, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) ("The Constitution . . . requires that statutes of limitations must `allow a reasonable time after they take effect for the commencement of suits upon existing causes of action.'"). Therefore, the court must address the "tolling" issue.
The one year period within which Peeples should have filed his section 2254 petition began on the effective date of the AEDPA, April 24, 1996, and ended one year later, on April 24, 1997. Peeples filed his state PCR application on July 15, 1993, and on February 6, 1995, an order was entered by the state district court dismissing the application. Peeples then appealed the dismissal. The Iowa Court of Appeals rejected his appeal on October 25, 1996. Thus, at a minimum, the time from April 24, 1996 (the effective date of the AEDPA) to October 25, 1996 (the date on which Peeples's appeal of the denial of his PCR application was rejected) should not count against the one-year period. This means that Peeples was entitled to an additional 184 days to file his petition, or until October 25, 1997. Since Peeples filed his section 2254 petition well within that time, July 22, 1997, it was timely filed.
B. Peeples's Claims
In his section 2254 petition, Peeples claims he received ineffective assistance of counsel from: (1) his trial attorney, (2) his appellate attorney, (3) his postconviction attorney, and (4) his postconviction appellate attorney. The state, on the other hand, argues that Peeples procedurally defaulted on these claims because he failed to raise them in state court. On December 21, 1998, Peeples also filed a Motion to Proceed in a Summary Judgment on Pleadings (Doc. No. 18), in which he claims his conviction was based on insufficient evidence.
1. Exhaustion of state remedies
A petitioner's claim for federal habeas relief will not be considered if the petitioner fails: "(1) to exhaust his state remedies and 2) to preserve his claim for review according to state procedural rules." McDonald v. Bowersox, 101 F.3d 588, 598 (8th Cir. 1996). A state court's finding of procedural default is not reviewable if the finding is based upon an adequate and independent state ground. Wyldes v. Hundley, 69 F.3d 247, 252 (8th Cir. 1995). However, the adequate and independent state ground must be firmly established and regularly followed. Id.
Iowa law requires that in order to assert a claim for ineffective assistance of trial counsel, ordinarily a defendant must show that his claim was preserved for review in a direct appeal. See Collins v. State, 477 N.W.2d 374, 376 (Iowa 1991). If a defendant fails to make a claim of ineffective assistance of counsel on direct appeal and instead makes the claim in his PCR application, the defendant must establish "sufficient reason" or "cause," for failing to raise the issue on direct appeal. Id.
Peeples raised the issue of ineffective assistance of counsel on direct appeal arguing that his trial attorney forced him to waive provisions for a speedy trial as well as his right to a jury trial. Peeples also argued that his trial attorney failed to move to suppress certain evidence and failed to object to evidence presented at trial. The Iowa Court of Appeals reserved those arguments for postconviction proceedings. Peeples then asserted those arguments in his PCR application and the district court found Peeples's attorney did not render ineffective assistance of counsel in regards to the evidentiary issues, but made no findings concerning the waiver issues. The district court's opinion also addressed, and rejected, additional grounds for ineffective assistance raised in Peeples's PCR application but not mentioned in his direct appeal.
The court rejected the following arguments: (1) that Peeples's attorney improperly handled Peeples's intoxication defense, (2) that Peeples's attorney should have reviewed the entire five hours of videotape from the security camera rather than just the portion relating to the incident at issue, (3) that Peeples's attorney improperly defended Peeples on the burglary charge, and (4) that Peeples's attorney failed to adequately investigate the scene of the incident.
Relying on procedural grounds, specifically Iowa Code § 822.8 (1995) dealing with postconviction procedure, the Iowa Court of Appeals rejected Peeples's appeal of the denial of his PCR application. Peeples v. State, No. 6-368/95-0359, slip op. at 3-5 (Iowa Ct.App. Oct. 25, 1996). The court found that Peeples raised four claims of ineffective assistance in his appeal of the denial of his PCR application: (1) failure by counsel to conduct an independent investigation, (2) failure by counsel to properly advise Peeples of the consequences of waiving his jury and speedy trial rights, (3) failure by counsel to make an effective presentation at trial, and (4) failure by counsel to present adequate evidence supporting Peeples's intoxication defense. The court found that because Peeples was presenting claims one, three, and four, for the first time in postconviction proceedings, and because he failed to show "sufficient reason" for failing to present the claims in his direct appeal, see IOWA CODE § 822.8 (1995), Iowa law procedurally barred them from review. The court agreed that Peeples properly preserved claim two, the waiver issues. However, the court held that because the district court did not make any findings as to the claim, and because Peeples subsequently failed to make any motion to secure a ruling on the claim, Peeples waived the claim and the court was precluded from addressing it.
Section 822.8 of the Iowa Code provides:
All grounds for relief available to an applicant under this chapter must be raised in the applicant's original, supplemental or amended application. Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.
The rules under which the Iowa court based its decisions to procedurally bar Peeples's claims must be firmly established and regularly followed in order to preclude review by this court. Regarding the rule used to bar claims one, three, and four, the court notes that the Iowa legislature enacted section 822.8 in 1970. The Iowa District Court for Black Hawk County convicted Peeples in 1991. Little, if any, argument can be made that the rule was not firmly established. See Wyldes, 69 F.3d at 252. As to whether the rule is regularly followed, a review of Iowa court decisions confirms that it is. See Washington v. Scurr, 304 N.W.2d 231, 235 (Iowa 1981); Collins v. State, 477 N.W.2d 374, 376 (Iowa 1991); LeGrand v. State, 540 N.W.2d 667, 668-69 (Iowa 1995); see also Wyldes, 69 F.3d at 252-53.
The rule used to bar claim two, the waiver issue, is also firmly established and regularly followed. Under Iowa law, a postconviction proceeding is civil in nature. Jones v. State, 479 N.W.2d 265 (Iowa 1991). In order to preserve error when an Iowa court fails to resolve an issue, claim, defense, or legal theory properly submitted for adjudication in a civil case, a party must make a motion pursuant to Iowa Rule of Civil Procedure 179(b). See Iowa Rules Civ. Proc., Rule 179(b); see also State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206 (Iowa 1984). In Peeples's case, the waiver issue was properly preserved and argued to the district court in the initial round of postconviction proceedings. However, the district court failed to rule on the issue and Peeples failed to make the appropriate rule 179(b) motion. Following firmly established and regularly followed rules, the Iowa Court of Appeals found the waiver issue to be procedurally barred.
* Excusing procedurally defaulted claims
A procedurally defaulted claim may only be considered if the petitioner "excuses the default by showing cause and prejudice or a colorable claim of factual innocence." Morris v. Norris, 83 F.3d 268, 270 (8th Cir. 1996). "In appropriate cases, constitutionally ineffective assistance of counsel can serve as a cause that allows [the court] to consider a defaulted argument." Wyldes, 69 F.3d at 253. However, "a claim of ineffective assistance [must] be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986); accord Whitmill v. Armontrout, 42 F.3d 1154, 1157 (8th Cir. 1994).
The court construes Peeples's section 2254 petition to argue that the ineffective assistance of Peeples's appellate counsel constituted cause to allow this court to consider his defaulted claims. Peeples did not raise the argument of ineffective assistance of appellate counsel in any state court proceeding. He cannot make such a claim for the first time in his federal habeas petition. See Reese v. Delo, 94 F.3d 1177, 1185 (8th Cir. 1996) (holding that although ineffective assistance of counsel claim can constitute cause for default, it must first be presented to state court in procedurally correct manner); see also Reynolds v. Caspari, 974 F.2d 946, 948 (8th Cir. 1992). Furthermore, Peeples's section 2254 petition lacked any claim of actual innocence, denying him entrance to review through that gateway.
* Sufficiency of the evidence
In his Motion to Proceed in a Summary Judgement on Pleadings, Peeples raises for the first time the argument that the state court lacked sufficient evidence to find him guilty. Failure to present an issue to state courts is a default of that issue. See Nave v. Delo, 62 F.3d 1024, 1030 (8th Cir. 1995). At no point in his state court proceedings did Peeples argue sufficiency of the evidence. Accordingly, the claim is defaulted.
Even though Peeples's sufficiency of the evidence claim is defaulted, a review of the record reveals ample evidence to sustain a conviction.
* Ineffective assistance of postconviction counsel
Peeples argues that his postconviction counsel and his postconviction appellate counsel provided ineffective assistance. A defendant, however, has no constitutional right to effective assistance of postconviction counsel. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991); accord Sweet v. Delo, 125 F.3d 1144, 1151 (8th Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1197, 140 L.Ed.2d 326 (1998). Because no constitutional right exists, the court cannot review Peeples's claims of ineffective assistance of postconviction counsel. See Coleman, 501 U.S. at 752, 111 S.Ct. at 2566.C. Certificate of Appealability
A prisoner must obtain a certificate of appealability from a district or circuit judge before appealing from the denial of a federal habeas petition. See 28 U.S.C. § 2253(c) (West Supp. 1998). A certificate of appealability issues only if the applicant makes a substantial showing of the denial of a constitutional right. See Roberts v. Bowersox, 137 F.3d 1062, 1068 (8th Cir. 1998).
The court believes that Peeples has failed to make a substantial showing that he has been deprived of a constitutional right. Therefore, the court does not recommend that a certificate of appealability be granted.
IV. CONCLUSION
For all the foregoing reasons, this court recommends that all claims raised in Peeples's petition for relief pursuant to 28 U.S.C. § 2254 be denied. Therefore, 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, judgment be entered in favor of the respondent and against the petitioner.
Objections must specify the parts of the report and recommendation to which objections are made. Objections 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, 106 S. Ct. 466, 475, 88 L. Ed. 2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).
Additionally, Peeples's Motion to Proceed in a Summary Judgement on Pleadings is denied.
IT IS SO ORDERED.