Brian Ward v. Ray Hobbs , 738 F.3d 915 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-3586
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Brian Ward,
lllllllllllllllllllll Plaintiff - Appellant,
v.
Ray Hobbs, Director, Arkansas Department of Correction,
lllllllllllllllllllll Defendant - Appellee.
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: September 27, 2013
Filed: December 26, 2013
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Brian Ward entered pleas of nolo contendere to 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 28 U.S.C. § 2254. The district court dismissed the petition
with prejudice on two alternative grounds: that Ward had procedurally defaulted his
claims in state court and that the claims lacked merit. The court then granted a
certificate of appealability on the question of procedural default. Because Ward
makes no substantial showing of the denial of a constitutional right on the merits, we
conclude that the certificate was improvidently granted on the preliminary question
of procedural default alone. We therefore dismiss the appeal.
Ward was charged in Arkansas state court with one count of rape and one count
of second-degree sexual assault, each involving a different victim. 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 Ark. R. App.
P.–Crim. 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 expired, Ward did
file a state habeas corpus petition in which he attempted to raise a claim of ineffective
assistance of trial counsel. Cf. Cothrine v. State, 907 S.W.2d 134, 135 (Ark. 1995)
(explaining that a state writ of habeas corpus cannot be substituted for post-
conviction relief under Rule 37). An Arkansas circuit court denied the state habeas
petition as being without merit, and there is no record of an appeal.
Ward’s subsequent federal habeas petition alleged ineffective assistance of trial
counsel, citing two deficiencies 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 that Ward had procedurally
defaulted his ineffective-assistance claims by failing to raise them in a petition under
Arkansas Rule of Criminal Procedure 37. Alternatively, the court rejected the claims
on the merits. The court saw no substance to the claim regarding parole eligibility,
because 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 uncertainty whether
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the rationale of Martinez v. Ryan, 132 S. Ct. 1309 (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 district
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 (2000)). The district court did not cite a
debatable question on the merits, and Ward’s brief on appeal addresses only the issue
of procedural default.
We conclude that the certificate of appealability was improvidently granted
because even assuming that Ward’s federal claims are not procedurally barred, he has
not made a substantial showing of the denial of a constitutional right. To prevail on
his claim of ineffective assistance of counsel, Ward must demonstrate a reasonable
probability that “but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
We 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, apparently 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
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the victim was infected by her abuser 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 contends 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 hearing to adjust the charged
time period, and the discrepancy likely would have been cured before a trial as well
if Ward had elected 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 frame 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.
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