Shawn Rainer v. Wendy Kelley , 865 F.3d 1035 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
______________________________
No. 16-1773
______________________________
Shawn Trevell Rainer
Plaintiff- Appellant
v.
Wendy Kelley, Director, Arkansas Department of Corrections
Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: March 8, 2017
Filed: August 1, 2017
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Before RILEY,1 Chief Judge, GRUENDER, Circuit Judge, and GRITZNER,2 District
Judge.
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GRITZNER, District Judge.
1
The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
2
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
Shawn Rainer (Rainer) was convicted of second-degree murder following a
jury trial in Arkansas state court and sentenced as a habitual offender to eighty years’
imprisonment. Rainer petitioned for a writ of habeas corpus under 28 U.S.C. § 2254,
arguing ineffective assistance of counsel. The district court3 dismissed the petition
but granted a certificate of appealability, see 28 U.S.C. § 2253(c)(1)-(2), on one
ground. This appeal followed. We affirm.
I. BACKGROUND
On June 14, 2009, Takina Douglas, Rainer’s girlfriend, placed a 911 call,
telling the dispatcher she had been stabbed. First responders arrived at the apartment,
but Douglas died of her injuries without communicating how she was stabbed.
Rainer told law enforcement that he and Douglas had been arguing when Douglas
came at him with a knife. Rainer said he and Douglas further exchanged words, then
she ran down the hallway, tripped on the telephone cord, and fell on the knife.
A. Trial and Direct Appeal
Rainer was charged with first-degree murder in the Mississippi County Circuit
Court, Arkansas Chickasawba District Criminal Division. The case proceeded to trial
and the state moved in limine to exclude evidence Douglas had been incarcerated for
committing assaults using knives and to exclude potential witness testimony that six
months earlier, Douglas stabbed Rainer, although no charges were filed against her.
During an unreported, pre-trial hearing, the circuit court granted the state’s motion
in limine. No record was made of the hearing or the circuit court’s ruling. For other
reasons, the trial was continued for almost one year.
3
The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas, adopting the report and recommendation of the
Honorable Jerome T. Kearney, United States Magistrate Judge for the Eastern District
of Arkansas.
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When trial commenced, Rainer’s counsel did not renew objections to the
court’s motion in limine ruling. No evidence or testimony regarding Douglas’ past
assaults with knives nor her prior attack upon Rainer came into evidence. Rainer did
not testify. After the close of evidence, as the parties prepared to give their closing
statements, Rainer’s trial counsel brought up the circuit court’s ruling in limine and
requested assurances that the state would not make any statements regarding a lack
of evidence to support Rainer’s defense that Douglas had the knife and fell on it. It
was agreed that no such statements would be made. The jury found Rainer guilty of
second-degree murder. During the sentencing phase, Rainer was found to be a
violent habitual offender and was sentenced to eighty years’ imprisonment.
Rainer filed a motion for new trial arguing the state presented insufficient
evidence to support the verdict. The circuit court denied the motion. Rainer
appealed, and the sole issue on direct appeal was sufficiency of the evidence. The
Arkansas Court of Appeals affirmed the conviction, see Rainer v. State, No. CACR
12-80, 2012 WL 5328599 (Ark. Ct. App. Oct. 24, 2012), and denied Rainer’s petition
for rehearing. The Arkansas Supreme Court denied his petition for review.
B. State Post-Conviction Relief Proceedings
Rainer filed a petition for post-conviction relief (PCR) under Arkansas Rule
of Criminal Procedure 37.1. Represented by new counsel (PCR counsel), Rainer
asserted two grounds for relief. Rainer’s first ground was a claim of ineffective
assistance by his trial and appellate counsel for not appealing the circuit court’s ruling
in limine disallowing evidence of Douglas’ two assault cases that involved knives.
As his second ground for relief, Rainer, who was charged with being a “small
habitual offender,” asserted his trial and appellate counsel provided ineffective
assistance by not objecting during the sentencing phase to the presentation of
evidence that he was a “serious violent offender.”
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The circuit court judge who presided over Rainer’s trial also presided over
Rainer’s Rule 37 proceeding. At the Rule 37 hearing, a discussion ensued regarding
the circuit court’s oral ruling on the state’s motion in limine. At the request of
Rainer’s PCR counsel, the judge, prosecutor, and Rainer’s trial counsel made a
“bystander affidavit,” detailing their recollection of the arguments and the oral ruling
the circuit court made three years earlier. Rainer’s trial counsel testified that he
believed the circuit court granted the motion in limine under Arkansas Rule of
Evidence 404. Thereafter, Rainer’s trial counsel testified that he did not appeal the
circuit court’s motion in limine ruling because there was no record of the ruling. In
support of ground one of the PCR petition, PCR counsel argued “the [c]ourt was
incorrect in [granting the state’s motion in limine] and you should reconsider that, and
that’s a new trial issue” that “fits all the elements of . . . the Rules of Evidence . . . .”
J.A. at 442. PCR counsel reiterated, “I think the [c]ourt erred, respectfully, by not
letting it come in in the first place.” J.A. at 444. The circuit court asked, “[h]ow does
this fit within Rule 37?” J.A. at 445. PCR counsel responded, “[i]f necessary I’ll
amend [the PCR petition] with leave of the Court . . . to say it’s a straight process
issue because now we know why it wasn’t appealed, there was no record on it.” Id.
In resistance, the state argued that evidence of Douglas’ propensity was irrelevant
given that Rainer’s defense was accident and not self defense.
Noting Rainer’s trial and appellate counsel did an “excellent job defending”
Rainer, J.A. at 449, the circuit court concluded that trial counsel had not been
“ineffective for not appealing my [motion in limine] ruling, even had there been a
record because frankly the [Arkansas] Supreme Court and the [Arkansas] Court of
Appeals on those kinds of issues give such deference to the trial court.” J.A. at 447.
The circuit court surmised that “if [trial counsel] made a mistake it was in not
renewing the motion after I’ve heard the testimony where it’s in my mind where I
could properly weigh it.” J.A. at 449 (emphasis added). The circuit court then
speculated, “I have to believe that had the motion been made on the record and it had
been fresh on my mind, I don’t know for certain that I would have allowed it in
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evidence. I don’t know for certain because I would have wanted a lot of details . . .
.” J.A. 448. The circuit court reasoned, “I am not saying that every one of those
things should come into evidence because at this point I don’t know enough of the
details. But at the very least the prior incident between the two, I would have allowed
into evidence had it been fresh on my mind and it had not been presented in the way
that it was presented.” J.A. at 449-50. The circuit court announced from the bench,
“[a]nd so for all of those reasons I’m granting the motion for a new trial.” J.A. at 450.
The circuit court asked Rainer’s PCR counsel to prepare an order.
Within an hour of the hearing, the following written order on the Rule 37
petition was filed:
The Rule 37.1 petition came on for hearing today, July 22, 2013,
and the court makes the following findings of fact and conclusions of
law:
1. No proper record was made of the motion in limine where
evidence was ruled out in a pretrial conference in chambers about
a year before trial. That violates Administrative Order No. 4
because the court had a duty to have it on the record. No lawyer
requested it be on the record.
2. By agreement of the parties, the record was supplemented at the
hearing with the testimony of defense counsel, the prosecutor, and
the recollections of the court. This was a de fact [sic]
“bystanders’s affidavit” where the court heard about three other
incidents, one of which involved the alleged victim stabbing the
defendant where he was hospitalized. There is a dispute, but it
appears that he requested the state not to prosecute her for that.
3. At the conclusion of the state’s case, the motion should have been
renewed because the context was more apparent, and the court
likely would have granted it.
4. The testimony about the alleged victim having a propensity to use
knives and to have previously stabbed defendant, too, on balance
was probably more relevant than prejudicial and likely would
have come in under [Arkansas Rule of Evidence] 403. (In any
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retrial, the scope of other such evidence is subject to review at
retrial.)
5. Defendant argues that this denied him due process and a fair trial
in violation of the constitutions. Rule 37.1(a)(i).
6. The testimony in the case was close, and the court almost granted
a directed verdict, but did not.
7. As a result, the court finds the defendant was denied a fair trial on
Ground No. 1, and a new trial is granted. Rule 37.4.
8. Ground 2 is moot.
J.A. at 411-12 (emphasis added). Ground one was Rainer’s claim for ineffective
assistance of counsel for not appealing the circuit court’s ruling in limine disallowing
evidence of Douglas’ two assault cases that involved knives.
The state appealed, arguing the circuit court’s grant of a new trial was clearly
erroneous because it was based on a reconsidered evidentiary ruling, not on
ineffective assistance of counsel, which was the ground argued in Rainer’s petition.
The state asserted that a petitioner seeking PCR on an ineffective assistance claim
must show that counsel could have made a successful argument, such that the fact-
finder’s decision would have been different. Rainer resisted, arguing the grant of a
new trial was proper on two bases. First, “[t]he lack of any proper record of the
[circuit] court’s pretrial ruling on the state’s motion in limine violated due process
and Administrative Order No. 4 and rendered the judgment void.” J.A. at 630.
Second, “[t]rial counsel’s failure to request reconsideration of, or make a record on,
the circuit court’s ruling on the state’s motion in limine was ineffective assistance of
counsel.” J.A. at 636. In reply, the state challenged Rainer’s attempt to transform the
requested relief in his Rule 37 petition—ineffective assistance of counsel for not
appealing the motion in limine ruling—into relief based on due process grounds. The
state further argued that unrecorded pretrial rulings and challenges to evidentiary
rulings are insufficient bases to void a judgment.
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With three justices dissenting, the Arkansas Supreme Court reversed the circuit
court’s grant of a new trial. State v. Rainer, 440 S.W.3d 315, 317 (2014). After
recounting Rainer’s trial, direct appeal, and PCR proceedings, the supreme court
established that the circuit court’s oral and written Rule 37 rulings on Rainer’s
ineffective assistance of counsel claim were reviewed under the two-prong standard
set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984).4 State v. Rainer, 440
S.W.3d at 317-20. The supreme court stated that an ineffective assistance of counsel
claim premised on failing to make a motion or an argument requires a showing “that
the motion or argument would have been meritorious because the failure to make an
argument that is meritless is not ineffective assistance of counsel.” Id. at 320
(quoting Mitchell v. State, No. CR 11-1204, 2012 WL 1950257, at *4 (Ark. May 31,
2012)). The supreme court noted that at trial, the circuit court excluded evidence of
Douglas’ prior bad acts involving knife violence, but after the Rule 37 hearing, the
circuit court ruled specific instances of Douglas’ prior bad acts may have come in
under Arkansas Rule of Evidence 403. Id. at 320. The supreme court observed,
“[t]he circuit court’s decision to grant Rainer a new trial was based, in part, on its
determination that the evidentiary ruling made at trial was erroneous.” Id.
The supreme court explained that “proof of a victim’s character by specific
instances of conduct is admissible in cases in which character or a trait of character
is an essential element of a charge, claim or defense,” id. (citing Solomon v. State,
913 S.W.2d 288, 292 (1996)), but the “character trait must be ‘an operative fact which
under substantive law determines the rights and liabilities of the parties,’” id. at 321
(quoting McClellan v. State, 570 S.W.2d 278, 280 (Ark. 1978)). Because Rainer
sought to use evidence of Douglas’ prior knife violence circumstantially as proof of
accident and not as evidence on a direct substantive issue, the evidence was properly
4
Under Strickland, a petitioner asserting ineffective assistance of counsel
claims must show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defense, that is, counsel’s errors were so serious the
petitioner was deprived a fair trial. Strickland, 466 U.S. at 687.
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excluded. Id. The supreme court discounted the circuit court’s supposition that it
might have ruled differently had trial counsel renewed the issue as being “of no
moment.” Id. The supreme court clarified that the proper standard is whether the
argument or issue would have been meritorious, and because evidence of Douglas’
prior conduct was not relevant to Rainer’s defense of accident, “the circuit court
clearly erred in concluding otherwise in its order granting Rainer’s postconviction
petition.” Id.
Regarding the assertion that trial counsel was ineffective for failing to renew
the objection to the motion in limine ruling, the supreme court reasoned there was no
requirement to do so in order to preserve the issue for appeal. Id. at 322 (citing Neal
v. State, 898 S.W.2d 440 (Ark. 1995)). Accordingly, “[t]rial counsel’s decision not
to renew his objection to the motion in limine during Rainer’s trial did not fall below
an objective standard of reasonableness, and was not deficient under the first
Strickland prong.” Id. (internal citation omitted).
The supreme court next addressed Rainer’s contention, raised for the first time
at the Rule 37 hearing, that by not appealing the circuit court’s failure to record the
motion in limine hearing, trial counsel was ineffective, which constituted a due
process violation. Id. The court first explained that Rule 37 generally does not
provide a remedy for an issue that could have been raised at trial or on appeal, but
there is an exception for errors that are so fundamental as to render the judgment of
conviction void and subject to collateral attack. Id. (citing Rowbottom v. State, 13
S.W.3d 904 (Ark. 2000)). Noting examples of fundamental error—such as double
jeopardy, deprivation of a twelve-person jury, lack of jurisdiction to try the accused,
prosecution’s reference to the defendant’s failure to testify, and acceptance of a plea
from a defendant proceeding without counsel—the supreme court held that a trial
court’s erroneous ruling on the admissibility of evidence did not fall within this
exception, should be raised at trial or on direct appeal, and could not be raised for the
first time in a Rule 37 petition. Id. at 322-23 (citing Green v. State, No. CR-13-517,
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2013 WL 5968933, at *4 (Ark. Nov. 7, 2013) (unpublished per curiam)). The court
added that “[a]ssertions of trial error, even those of constitutional dimension, must be
raised at trial and on appeal.” Id. at 323 (quoting Watson v. State, No. CR 11-148,
2012 WL 234634, at *1 (Ark. Jan. 26, 2012) (unpublished per curiam)).
Next, the supreme court rejected Rainer’s assertion his trial counsel could not
have raised the circuit court’s failure to record the motion in limine hearing on direct
appeal. Id. (“Arkansas Rule of Appellate Procedure—Civil 6 allows the appellant to
prepare a statement of the evidence or proceedings from the best means available,
including his recollection, if no report of the evidence or proceedings at a hearing or
trial was made, or if a transcript is unavailable.”). Even if the issue could not have
been raised on direct appeal, Rainer could not have shown prejudice from trial
counsel’s decision not to raise the issue, because “specific instances of conduct are
admissible only in cases in which character or a trait of character is an essential
element of a charge, claim or defense.” Id.; see also Solomon, 913 S.W.2d at 292
(affirming the exclusion of testimony regarding the victim’s prior violent conduct
toward the defendant, holding the defendant failed to meet the admissibility standard
under Ark. R. Evid. 405(b) “because the victim’s violent character was not an
essential element of the murder charge or of his defense of accident”). The supreme
court added, “Where a defendant is claiming accident, specific instances of the
victim’s character for violence are simply irrelevant and inadmissible.” Rainer, 440
S.W.3d at 323. The supreme court concluded Rainer could not “show that the circuit
court erred in its ruling or that the evidentiary ruling would have been sufficient to
merit appellate relief,” adding, furthermore, “[t]he circuit court recognized that trial
counsel was not ineffective for failing to appeal the ruling on the State’s motion in
limine.” Id. at 323-24, 324 n.5.
The supreme court also disposed of Rainer’s contention that on due process
grounds he was entitled to a new trial based on the circuit court’s failure to record the
motion in limine hearing stating, “[w]here the existing record is sufficient to permit
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a review for errors prejudicial to the rights of the appellant, this court will not order
a new trial.” Id. at 324. (citing Scott v. State, 139 S.W.3d 511, 515 (Ark. 2003)). To
provide Rule 37 relief on an issue not raised at trial or on direct appeal, “the error
alleged must be so fundamental as to render the judgment of conviction void and
subject to collateral attack,” but that was not the circumstance in this case. Id.
Rather, the record had “already been properly supplemented in order to recreate the
motion in limine hearing, and reflects that Rainer suffered no prejudice as a result of
the circuit court’s ruling.” Id.
As a final point, the supreme court held it would not reach Rainer’s second
ground for relief regarding the serious violent offender designation because the
circuit court, having found it moot, did not rule on the issue. Id.; see also Strain v.
State, 423 S.W.3d 1, 6 (Ark. 2012) (per curiam) (“[T]his court cannot rule on issues
where the circuit court fails to provide a ruling.”).
C. Section 2254 Proceedings
Rainer filed a petition for habeas corpus against Wendy Kelley, Director of the
Arkansas Department of Corrections (the Director), asserting five grounds for relief.
As ground four, Rainer asserted he was denied the opportunity to put on a complete
defense, in violation of his right to due process. The magistrate judge issued
proposed findings and recommendations (R&R), see 28 U.S.C. § 636(c),
recommending that the district court deny the first, second, third, and fifth grounds
for relief, and ordered further briefing on the fourth ground. No objections were
filed, and the district court adopted the R&R.
After further briefing, the magistrate judge entered a second R&R
recommending the court deny relief on the fourth ground, finding the Arkansas
Supreme Court’s decision reversing the circuit court was entitled to deference and
that because the Arkansas Supreme Court did not unreasonably apply federal law,
Rainer’s underlying due process claim lacked merit. Rainer v. Kelley, 5:15-cv-
-10-
00153-BSM-JTK, 2015 WL 9948257, at *3-4 (E.D. Ark. Dec. 23, 2015). The district
court adopted the R&R and denied the petition but granted a certificate of
appealability on the fourth ground. Rainer v. Kelley, 5:15-cv-00153-BSM-JTK, 2016
WL 409704, at *1 (E.D. Ark. Feb. 2, 2016). This appeal followed.
II. DISCUSSION
When considering the denial of a habeas petition, “we review the district
court’s findings of fact for clear error and its conclusions of law de novo.” Forrest
v. Steele, 764 F.3d 848, 853 (8th Cir. 2014) (quoting Middleton v. Roper, 455 F.3d
838, 845 (8th Cir. 2006)). The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2254(d), “modified a federal habeas court’s role in
reviewing state prisoner applications in order to prevent federal habeas retrials and
to ensure state-court convictions are given effect to the extent possible under law.”
Id. (quoting Abernathy v. Hobbs, 748 F.3d 813, 816 (8th Cir. 2014)). AEDPA limits
our grant of habeas to instances in which the state’s adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
“Under § 2254(d)(1)’s ‘unreasonable application’ clause . . . a federal habeas
court may not issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be unreasonable.” Cole
v. Roper, 783 F.3d 707, 710 (8th Cir. 2015) (alteration in original) (quoting Williams
v. Taylor, 529 U.S. 362, 411 (2000)). Moreover, the decision of a state court “may
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be incorrect, yet still not unreasonable, and we will grant relief only if the state court
decision is both incorrect and unreasonable.” Id. (quoting Cole v. Roper, 623 F.3d
1183, 1187 (8th Cir. 2010)).
On appeal, Rainer argues the Arkansas Supreme Court’s ruling that Arkansas
Rule of Evidence 405 prohibited Rainer from admitting evidence of Douglas’ prior
stabbing incidents prevented him from presenting a full and complete defense and,
therefore, violated Rainer’s right to due process. Rainer also argues failure to raise
this due process claim was ineffective assistance by Rainer’s trial and appellate
counsel. The Director resists, arguing Rainer did not challenge the Arkansas
Supreme Court’s ruling on the exclusion of evidence of Douglas’ propensity on the
basis that it violated his right to due process because it prevented him from putting
on a complete defense. The Director further argues that since that issue was not
before the district court, it is not preserved for appellate review; but even if it had
been preserved, it is meritless. The Director similarly argues that Rainer’s ineffective
assistance of counsel claim based on a failure to raise a due process violation claim
at trial or on appeal was similarly not before the district court and therefore is not
properly before this court on review. Again, the Director argues even if the claim
were properly before this court, it is meritless. Finally, the Director argues on de
novo review this court can find Rainer’s claims are meritless.
As an initial matter, we point out that Rainer’s basis for PCR has repeatedly
shifted without formality or amendment. The pivotal shift occurred at the Rule 37
hearing before the circuit court when Rainer’s claim for ineffective assistance of trial
and appellate counsel for not appealing the circuit court’s ruling on the state’s motion
in limine transformed into an argument that the circuit court’s allegedly incorrect
evidentiary ruling deprived Rainer of a fair trial. The circuit court questioned PCR
counsel as to how relief based upon this alleged error fit within Rule 37. PCR
counsel asserted that “[i]f necessary I’ll amend [the petition] with leave of the Court
. . . to say it’s a straight process issue because now we know why it wasn’t appealed,
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there was no record on it.” J.A. at 445. After reciting its recollection of events at
Rainer’s trial, the circuit court then announced that trial counsel had not been
“ineffective for not appealing my [motion in limine] ruling,” but “if [trial counsel]
made a mistake it was in not renewing the motion after I’ve heard the testimony
where it’s in my mind where I could properly weigh it.” J.A. at 447, 449 (emphasis
added). The circuit court then surmised that it “would have at least allowed in the
prior incident involving [Douglas and Rainer],” and then made its oral ruling, stating,
“for all of those reasons I’m granting the motion for a new trial.” J.A. at 450. In its
written order, however, the circuit court stated relief was granted on ground one of
the petition—ineffective assistance of counsel for not appealing the motion in limine
ruling. J.A. at 411. PCR counsel never formally amended the petition to add a
“straight process” claim. On state appellate review, PCR counsel raised an additional
due process claim, alleging the circuit court’s failure to record the ruling in limine
violated an administrative rule and deprived Rainer of his right to due process. PCR
counsel also alleged ineffective assistance of counsel for failing to request
reconsideration of, or make a record on, the motion in limine ruling.
On ground four of his § 2254 petition, Rainer attempted to disentangle his due
process argument from his ineffective assistance of counsel claim, which was the
basis upon which the circuit court granted relief. In ground four, Rainer asserted he
was denied the opportunity to put on a complete defense, in violation of the due
process clause of the Fourteenth Amendment. In his reply brief in this appeal,
however, Rainer asserts his “ineffective assistance and due process claims are
separate but intertwined,” and although his ineffective assistance claim requires a
finding of a due process violation, the court could find a due process violation even
if counsel was not ineffective. Reply 1. Mindful of this evolving framework, we
review the district court’s denial of Rainer’s petition.
In the second R&R, the magistrate judge rejected Rainer’s contention that the
Arkansas Supreme Court’s decision was not entitled to deference because it did not
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address his due process claim. Rainer v. Kelley, 2015 WL 9948257, at *1. The
magistrate judge recommended denying Rainer’s fourth ground for relief. Id. The
magistrate judge observed that the supreme court’s opinion “mentions the claim, but
analyzes it as an ineffective assistance of trial counsel claim for failing to renew the
motion in limine either during trial or in a motion for a new trial.” Rainer v. Kelley,
2015 WL 9948257, at *2. The magistrate judge further stated, “[w]hen a state court
rejects a federal claim without expressly addressing that claim, a federal habeas court
must presume that the federal claim was adjudicated on the merits,” and that only in
“unusual” and limited circumstances can this presumption be rebutted. Id. at *3
(quoting Johnson v. Williams, 568 U.S. 289, 301, 302 (2013)). The magistrate judge
concluded Rainer did not rebut the presumption, reasoning the supreme court’s
mention of the claim “shows that the supreme court at least potentially considered it,”
and therefore deference is required. Id. The district court adopted the R&R in all
respects. Rainer v. Kelley, 2016 WL 409704. We agree that the Arkansas Supreme
Court’s decision is entitled to deference.
The Arkansas Supreme Court not only mentions Rainer’s “straight process”
claim but acknowledges PCR counsel’s oral amendment adding the claim at the Rule
37 hearing. See State v. Rainer, 440 S.W.3d at 319 (“Rainer then orally amended his
petition to say ‘it’s a straight process issue because now we know why it wasn’t
appealed, there was no record on it.’” (emphasis added)). However, the circuit court
granted Rainer’s Rule 37 petition on ground one, which was an ineffective assistance
of counsel claim, and thus that was the claim before the Arkansas Supreme Court on
appeal. Although Rainer acknowledges in his Reply on this appeal, his “ineffective
assistance and due process claims are separate but intertwined,” Reply 1, Rainer
faults the Arkansas Supreme Court for considering this intertwined argument as it
was presented on appeal. Whether or not Rainer maintained a due process claim
entirely independent of his ineffective assistance claim, Rainer did not rebut the
presumption that the Arkansas Supreme Court’s decision adjudicated his due process
claim on the merits, and the decision is therefore entitled to deference. See §
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2254(d)-(e); Nash v. Russell, 807 F.3d 892, 897 (8th Cir. 2016) (recognizing the
deferential AEDPA standard, noting this court will “take ‘only a limited and
deferential review of underlying state court decisions’” (quoting Worthington v.
Roper, 631 F.3d 487, 495 (8th Cir. 2011))).
We further hold that the district court, through the adoption of the second
R&R, properly applied the deferential AEDPA standard of review to Rainer’s due
process claim, concluding “the Arkansas Supreme Court did not unreasonably apply
the United States Supreme Court precedent.” Rainer v. Kelley, 2015 WL 9948257,
at *4. Under Arkansas’ rules of evidence, proof of a victim’s character is admissible
“in cases in which character or a trait of character is an essential element of a charge,
claim or defense.” State v. Rainer, 440 S.W.3d at 320-21. Rainer’s defense was
accident, not self-defense. In holding the exclusion of evidence regarding Douglas’
prior assaults with knives did not violate Rainer’s right to due process, the Arkansas
Supreme Court found Rainer’s evidence of Douglas’ character was not an essential
element of his accident defense, and therefore was not admissible. Id. The supreme
court went on to reason that because the exclusion of evidence was proper, Rainer’s
trial and appellate counsel could not have been ineffective for not renewing
objections to the exclusion of that evidence, and thus Rainer’s right to due process
was not violated. Id. at 323-24.
Moreover, exclusion of evidence regarding Douglas’ prior assaults with knives
did not prevent Rainer from presenting his defense of accident. The trial transcript
reveals the officers responding to Douglas’ 911 call each testified that Rainer stated
Douglas tripped and fell on the knife. See, e.g., J.A. at 94, 98, 99. Rainer can be
heard in the background of Douglas’ recorded 911 call, which was played for the jury,
saying Douglas fell on a knife. J.A. at 202. Nor would evidence of Douglas’ prior
assaults using knives have been relevant to counter evidence the state presented to
prove its case against Rainer, which included the medical examiner’s testimony that
Douglas’ wound was inconsistent with falling on the knife, J.A. at 134-36; that
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Douglas’ blood was found throughout the apartment, not only in the hallway where
Rainer alleged Douglas fell, J.A. at 91-92, 97, 101, 110-11, 119-20; and that Rainer’s
blood was found on the knife, J.A. at 92-93. In addition, an Arkansas State Crime
Laboratory analyst testified that Rainer’s thumb print was found on the knife. J.A.
at 141. The issue before this court is whether the decision of the Arkansas Supreme
Court on the question of whether Rainer was deprived of the right to a fair trial and
denied due process “was contrary to, or an unreasonable application of, clearly
established federal law.” See Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012).
Applying that standard, we conclude it was not; therefore, Rainer is not entitled to
relief.
To the extent Rainer’s intertwined claim for ineffective assistance of counsel
for failing to renew objections to the circuit court’s exclusion of evidence ruling is
properly before this court on appeal, the claim must be denied. The evidence was
properly excluded under Arkansas law, and therefore counsel could not have been
ineffective for failing to renew the issue or raise it on appeal. See Dodge v.
Robinson, 625 F.3d 1014, 1019 (8th Cir. 2010) (finding counsel’s failure to raise a
meritless claim at trial could not constitute ineffective assistance).
III. CONCLUSION
For the foregoing reasons, we affirm the denial of Rainer’s petition for writ of
habeas corpus.
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