Ray Eugene McDaniel v. Larry Norris, Acting Director, Arkansas Department of Corrections
38 F.3d 385
8th Cir.
1995
Check Treatment

*1 order, injunctive not- pre-existing own its of the ar-

withstanding subsequent invocation parties to the process by one of the

bitration injunction. Among

case that resulted injunction is of things, violation of court, the Federal contempt of

course construed to Act should not be

Arbitration powers to courts of their traditional

divest

punish contempt. for reasons, agree order

For these should be affirmed.

of the District Court McDANIEL, Appellee, Director,

Larry NORRIS, Acting Department

Corrections, Appellant. Court of

United States May Suggestion Rehearing

Rehearing and 5, 1995.*

En Banc Denied Jan. Gen., Reeves, Atty. Little Asst.

Oían W. Rock, AR, argued, appellant. Rock, AR, Harrod, argued, Roger B. Little appellee. BOWMAN, Judge, Circuit Before Judge, and Circuit Senior BEAM, Judge. Circuit BOWMAN, Judge. Circuit Ray Eugene The District corpus, and the a writ of habeas reverse. of Arkansas We * McMillian, rehearing grant sugges en banc. tion for would Circuit *2 386 may A procedural

I. court. default be excused that a federal court will consider so habeas 1986, through the climbed McDaniel prisoner’s pris- of claim if the the merits the Wendy’s drive-through of a restau- window preju- oner shows cause for the default and dining area had closed. after the main rant alleged from the violation of federal law. dice non-employee helping grabbed a who He 722, 750, Thompson, Coleman v. long and made a cut on close the restaurant (1991). 2546, 2565, S.Ct. 115 L.Ed.2d 640 a knife. McDaniel then his throat with that McDaniel The District Court concluded grabbed manager, wrapped his arm around prejudice, had not shown cause and and neck, pressed and the knife into her her challenge ruling McDaniel does not this on McDaniel made clear to his two vic- back. appeal. money. demands for When another tims his area, employee the McDaniel or- entered Alternatively, prisoner who is un register. that open him to the When dered prejudice may able to show cause and still employee told McDaniel he did not know how of obtain federal habeas review the merits of manager open register, to the and the stated if his claim he is able to show that money already that the had been removed fundamental-miscarriage-of-justice exception register, all three from the McDaniel herded applies. exception applies only if This victims into a back and then took a set rpom, factually just prisoner legally —not —inno approximately from the and cent of the crime of which he was convicted. — from the restaurant. U.S.—,—, Sawyer Whitley, (1992); S.Ct. 120 L.Ed.2d 269 jury In 1987 an Arkansas convicted Armontrout, (8th 615, Nolan 973 F.2d aggravated McDaniel of three counts rob- Cir.1992). standard, Sawyer Under property and one count of theft of based applies guilt which this Circuit has held to upon this conduct. McDaniel was sentenced determinations, Lockhart, McCoy v. 969 F.2d forty years prison. to serve McDaniel’s (8th Cir.1992), a court will reach the affirmed, State, convictions were McDaniel v. “only merits of the constitutional claim where his 743 S.W.2d petitioner the habeas demonstrates clear attempt gain postconviction relief convincing evidence but for the was unsuccessful. error, alleged constitutional McDaniel later federal habeas re- petitioner guilty would have found the alleged lief. He that he had intended to steal of the crime which he was convicted.” Wendy’s, only from and thus that his actions (8th Lockhart, Wallace v. constituted a continuous course of con- Cir.1994). support duct that would but one Therefore, concluded,

robbery conviction. actually McDaniel claims he is inno convictions, one, state had violated his double robbery cent of his save rights convicting him of three counts any because he did intend to steal from aggravated robbery. He relied on Wendy’s. law, Wheat one but Under Arkansas how State, 297 Ark. ever, 763 S.W.2d aggravated robbery by one commits support. argued The state threatening using property force take that another, inter alia property from even if the did proeedurally claim was victim, barred because he belong to the and even if the raised it in state court. The never District attempt McKinzy was unsuccessful. See the writ and ordered that 313 Ark. McDaniel (1993); be resentenced on one count of Robinson v. 303 Ark. aggravated robbery. The state 425-26 nothing McDaniel has made more II. than a bald assertion that he did not intend (even parties agree belonging that take that proeedurally Wendy’s) claim is de from each of the three victims he Wendy’s. faulted because he failed to raise it in state encountered This is not clear (8th Armontrout, Cir.1993) convincing of actual innocence. (actual standard). contrary, the state of- McDaniel To the the evidence trial therefore is entitled to the relief he seeks. at McDaniel’s demonstrates fered victims made it clear to each of his Jeopardy The Double of the Fifth Clause *3 money, is no indi- that he wanted and there protects against Amendment defendants mul- overly about its cation he was concerned tiple punishments in proceeding the same that McDan- source. The record thus shows Const, V; the same offense. U.S. amend. clearly simply “h[o]ld iel did far more than Cavanaugh, United States v. bay,” suggests at as McDaniel [the victims] (8th Cir.1991). § In a 28 U.S.C. brief, Appellee at and as in his Brief for proceeding, “a federal court should defer to a Wheat, happened in at 80. We interpretation state court’s of state law in has fallen far short conclude that McDaniel determining whether incident constitutes making showing of actual innocence than one or more one offense double necessary for us to reach the merits of his jeopardy purposes.” Champi- Mansfield claim.1 constitutional (10th Cir.1993). on, Al- though legal not' bound state court’s

III. conclusion as to when double vio- occurs, accept lation this court is bound to stan- Because McDaniel has met the Arkansas’s construction of its state statutes. required showing of actual inno- dard for a Hunter, See Missouri v. 459 U.S. cence, reaching in the District Court erred 103 S.Ct. L.Ed.2d procedurally barred the merits of McDaniel’s granting in claim and McDan- constitutional Supreme The Arkansas Court has ad- judgment The of the Dis- iel habeas relief. precise dressed the issue of whether a course trict is reversed. multiple of conduct like McDaniel’s warrants aggravated robbery counts. See Wheat Senior Circuit Ark. dissenting. curiam). Wheat, court held only McDaniel, committed one the defendant young black three, robbery, when he entered a male, aggravated robbery convicted of pharmacy to lie on the and forced two clerks jury in state court. an all-white Arkansas pharma- gunpoint while he forced a floor though he than Even obtained less money drugs. gather The court robbery, cist a set of he was sen- concluded Wheat threatened all three em- forty years imprisonment. tenced to He has ployees, but “he neither took nor manifested years eight served of that sentence. The individually any taking property intention granted McDaniel ha- learned district court Thus, jeop- relief; from each of them.” Id. beas we should do the same. prohibited ardy principles and Arkansas law majority merits of The does not reach the separate counts for Wheat’s three it claim because person Id. each he threatened. technically McDaniel has not concludes that clearly in this case shows “actually innocent” of two of the The record shown he is only robbery. obtained the res- counts of would McDaniel three because, desktop money, he took off a merits taurant’s which address the convincing in room. McDaniel did direct a McDaniel has made a clear and the back keys, him give which used absent a double viola- tion, no evidence found enter the back room. There was would have property from separate attempted that he to take guilty him counts of rob- three any employees. personal possession of law. See under Ruff by Teague disposition habeas review this case on bar is barred on federal 1. Our Lane, unnecessary grounds us consider makes it 103 L.Ed.2d 109 S.Ct. arguments the state's that Wheat v. errone- and that the District Court (1989) (per S.W.2d 79 applying ously in this case. construed Wheat as rule, application a new of which announced manifest an intent did not Because McDaniel individually per- from each

to take

son, have been convicted of he should not majority’s at- separate counts.

three unavailing distinguish Wheat is tempt to —it and in Wheat that undisputed both here per- more than one

the defendant threatened missing in both cases is

son. The element injury of threat

not the absence individual, the lack of manifestation but

each *4 theft each individ-

of intent to commit wholly analogous my

ual. Wheat is ease and directs the conclusion

to this aggra- only one count of

McDaniel committed robbery under Arkansas law. Double

vated

jeopardy principles prohibit McDaniel’s three

separate convictions for this offense. Cavanaugh, 948 F.2d at 414.

See showing of actual Ruff, F.2d

lifts the bar. See McDaniel has

at 642. For the same reasons innocence, actual he has view

shown underlying the merit of his

demonstrated Accordingly,

claim. I would affirm the dis- requiring the state to re-

trict court’s order McDaniel for one count of

sentence or, timely days absent within 120

resentencing, issuing the writ of habeas cor-

pus. TURNER, Appellee,

Shon CASPARI, Appellant,

Paul

Mary Brundage, Defendant, Austermann; Major Smith;

Ann J. Schneider, Appellants.

Janet

United States Court Sept. 1994.

Rehearing Denied Nov.