Briаn WARD, Plaintiff-Appellant, v. Ray HOBBS, Director, Arkansas Department of Correction, Defendant-Appellee.
No. 12-3586.
United States Court of Appeals, Eighth Circuit.
Submitted: Sept. 27, 2013. Filed: Dec. 26, 2013.
738 F.3d 915
Even if there is a disputed issue of material fact as to whether Carter was motivated by a desire to retaliate against Spencer, Carter‘s action in removing him from the IWP was not sufficiently adverse because he was not qualified for the privileges hе sought. Accordingly, I would find that Carter has demonstrated that Spencer cannot establish an essential element of his claim, and, therefore, I rеspectfully dissent in part.
Walter Craig Lambert, argued, North Little Rock, AR, for Appellant.
Lauren Elizabeth Heil, AAG, argued, Little Rock, AR, for Appellee.
COLLOTON, Circuit Judge.
Brian Ward entered pleas of nolo contendere tо rape and second-degree sexual abuse in Arkansas state court. He later petitioned for a writ of habeas corpus in the district court, pursuant to
Ward was charged in Arkansas state court with one count of rape and one count of second-degree sexual assault, each involving a different viсtim. He pleaded nolo contendere to both counts and was sentenced to a term of imprisonment. By pleading nolo contendere, Ward forfeited his right to appeal the conviction, see
Ward‘s subsequent federal habeas petition alleged ineffective assistance of trial counsel, citing two defiсiencies in counsel‘s performance: failure to advise him correctly regarding eligibility for parole and failure adequately to investigate his case such that Ward had no choice but to plead guilty. The district court rejected both claims and dismissed the petition. First, the court ruled thаt Ward had procedurally defaulted his ineffective-assistance claims by failing to raise them in a petition under Arkansas Rule of Criminal Procedurе 37. Alternatively, the court rejected the claims on the merits. The court saw no substance to the claim regarding parole eligibility, becausе Ward acknowledged during the plea colloquy that he would be ineligible for parole, so there could be no prejudice from any failure of counsel to advise him of the same. The court rejected Ward‘s claim regarding his counsel‘s failure to investigate, concluding that the alleged deficiencies were inconsequential. Despite having rejected the claims on the merits, however, the court expressed uncеrtainty whether the rationale of Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), would allow Ward to secure equitable relief from his procedural default, and granted Ward a certificate of appealability on that question.
Before granting a certificate of appealability on a procedural issue, a distriсt court should determine “both ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.‘” Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir.2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). The district court did not cite a debatablе question on the merits, and Ward‘s brief on appeal addresses only the issue of procedural default.
Wе see nothing in the record to support a debatable conclusion that but for counsel‘s alleged errors, Ward would have proceeded to trial. Ward says that counsel should have arranged testing to determine whether Ward was infected with a sexually transmitted disease, appаrently because one victim reported some time after the offense involving her that she was so infected. As the district court observed, however, the proposed investigation would have had little bearing on whether Ward committed the charged offense. The victim reported seeking treatment for a sexually transmitted disease in 2007, but the charged offense occurred no later than 2000, so there is little or no basis to infer a connection between the victim‘s disease and Ward‘s health status in 2000. Even assuming there were circumstantial evidence that the victim was infected by her аbuser in 2000, moreover, Ward‘s health status at the time of the plea in 2010 likely could not establish his health status at the time of the offense in 2000.
Ward also cоntends that counsel should have inquired into an inconsistency between a detective‘s investigative notes and the charging documents regarding the dates of the alleged sexual misconduct. But any inconsistency was eliminated when the State orally amended the information at Ward‘s plea hеaring to adjust the charged time period, and the discrepancy likely would have been cured before a trial as well if Ward had electеd to proceed. Ward also complains that counsel failed to pursue the fact that he was incarcerated during part of the time frame alleged in the original charging documents, but again, the information was amended orally at the plea hearing to narrow the time framе and thus to eliminate Ward‘s asserted alibi. As for advice about parole eligibility, the state court apprised Ward of his ineligibility for parole at the time he pleaded guilty, but Ward elected to proceed anyway, so there is no substantial showing of prejudice.
For the foregoing reasons, we conclude that Ward has not made a substantial showing of the denial of a constitutional right. Accordingly, the certificate of appealability was improvidently granted and is hereby revoked. The appeal is dismissed.