Gary Crawford v. Larry Norris , 363 F. App'x 428 ( 2010 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ________________
    No. 09-2063
    ________________
    Gary Crawford,                           *
    *
    Appellant,                   *
    *      Appeal from the United States
    v.                                 *      District Court for the
    *      Eastern District of Arkansas.
    Larry Norris, Director, Arkansas         *
    Department of Correction,                *      [UNPUBLISHED]
    *
    Appellee.                    *
    _______________
    Submitted: January 11, 2010
    Filed: January 29, 2010
    ________________
    Before GRUENDER and SHEPHERD, Circuit Judges, and JARVEY,1 District
    Judge.
    ________________
    PER CURIAM.
    In 2004, Gary Crawford was tried in the Circuit Court of Jackson County,
    Arkansas on charges of kidnapping and rape. The jury found Crawford guilty of both
    charges, and he was sentenced to twenty-eight years’ imprisonment. Crawford filed
    1
    The Honorable John A. Jarvey, United States District Judge for the Southern
    District of Iowa, sitting by designation.
    a petition for post-conviction relief under Rule 37.1 of the Arkansas Rules of Criminal
    Procedure, claiming, among other things, that his counsel was ineffective because he
    did not call Al Hamdini as a witness. According to Crawford, Hamdini would have
    testified that he saw Crawford leave Hamdini’s shop in a car with the twelve-year-old
    victim and the victim’s brother on the day of the kidnapping and rape. The victim and
    her brother had given a different account at trial; the victim testified that Crawford
    dragged her away from the shop, alone and against her will, and the victim’s brother
    testified that he saw Crawford pulling his sister through a field behind the shop.
    Crawford suggested in his petition that Hamdini’s testimony would have proved that
    the victim and her brother testified falsely.
    The trial court denied Crawford’s petition for post-conviction relief, finding that
    Crawford’s counsel made a tactical decision not to call Hamdini as a witness. The
    Arkansas Supreme Court affirmed the denial of post-conviction relief, holding that
    Crawford failed to show that his counsel’s performance was deficient or that counsel’s
    allegedly deficient performance prejudiced his defense. See Strickland v. Washington,
    
    466 U.S. 668
    , 687 (1984). Crawford next filed a petition for a writ of habeas corpus
    under 
    28 U.S.C. § 2254
    . The district court2 dismissed Crawford’s petition but granted
    a certificate of appealability “on the issue of whether Crawford was denied his right
    to effective assistance of counsel.”3 Crawford’s only argument on appeal is that the
    district court abused its discretion in dismissing his petition without holding an
    evidentiary hearing.
    2
    The Honorable J. Leon Holmes, Chief Judge, United States District Court for
    the Eastern District of Arkansas, adopting the proposed findings and
    recommendations of the Honorable H. David Young, United States Magistrate Judge
    for the Eastern District of Arkansas.
    3
    The district court also granted a certificate of appealability “on the issue of
    whether Crawford . . . is actually innocent.” Crawford has expressly abandoned his
    actual innocence claim, so we need not consider that issue.
    -2-
    At the outset, we note that the Antiterrorism and Effective Death Penalty Act
    of 1996 (AEDPA) contains “mandatory restrictions barring evidentiary hearings in
    most federal habeas proceedings” under § 2254. Williams v. Norris, 
    576 F.3d 850
    ,
    859 (8th Cir. 2009) (citing § 2254(e)(2)). “Only if the habeas petitioner ‘was unable
    to develop his claim in state court despite diligent effort’ is an evidentiary hearing not
    barred by § 2254(e)(2).” Id. at 860 (quoting Williams v. Taylor, 
    529 U.S. 420
    , 437
    (2000)). Crawford does not contend that he exercised diligence in seeking to develop
    the factual basis of his ineffective assistance claim in state court. Crawford does,
    however, assert that he did not receive a “full and fair hearing” in state court. The
    record shows that the trial court denied Crawford’s petition for post-conviction relief
    under Rule 37.1 without holding an evidentiary hearing. And the State does not argue
    that Crawford failed to develop the factual basis of his claim due to a lack of
    diligence. Cf. Gingras v. Weber, 
    543 F.3d 1001
    , 1004 (8th Cir. 2008) (“An applicant
    has ‘failed to develop’ a claim only where ‘there is lack of diligence, or some greater
    fault, attributable to the prisoner or the prisoner’s counsel.’” (quoting Williams v.
    Taylor, 
    529 U.S. at 432
    )). Thus, we will assume for purposes of this appeal that
    Crawford’s request for an evidentiary hearing was not barred by § 2254(e)(2). See
    Johnston v. Luebbers, 
    288 F.3d 1048
    , 1059 (8th Cir. 2002).
    Given that assumption, the decision whether to grant or deny the requested
    hearing “rest[ed] in the discretion of the district court.” Williams v. Norris, 
    576 F.3d at 860
     (quoting Schriro v. Landrigan, 
    550 U.S. 465
    , 468 (2007)). The Supreme Court
    has said that “[i]n deciding whether to grant an evidentiary hearing, a federal court
    must consider whether such a hearing could enable an applicant to prove the petition’s
    factual allegations, which, if true, would entitle the applicant to federal habeas relief.”
    Schriro, 
    550 U.S. at 474
    . It follows that a court “must take into account” the
    “deferential standards prescribed by § 2254.” Id. If the factual allegations a petitioner
    seeks to prove would not entitle him to relief under the relevant standard, then an
    evidentiary hearing is not required. See Johnston, 
    288 F.3d at 1059
    ; see also Newton
    -3-
    v. Kemna, 
    354 F.3d 776
    , 785 (8th Cir. 2004) (“[T]he court may deny an evidentiary
    hearing if such a hearing would not assist in resolving the petitioner’s claim.”).
    The relevant standard for determining Crawford’s entitlement to relief is set out
    in § 2254(d), which provides that
    [a]n application for a writ of habeas corpus on behalf of a person in
    custody pursuant to the judgment of a State court shall not be granted
    with respect to any claim that was adjudicated on the merits in State
    court proceedings unless the adjudication of the claim—
    (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 . . . .
    Crawford cannot plausibly argue that the Arkansas Supreme Court’s
    adjudication of his ineffective assistance claim resulted in a decision that was
    “contrary to” clearly established federal law. See Williams v. Taylor, 
    529 U.S. 362
    ,
    405-06 (2000) (holding that a state-court decision is “contrary to” clearly established
    federal law if it “applies a rule that contradicts the governing law set forth in [the
    Supreme Court’s] cases,” or “if the state court confronts a set of facts that are
    materially indistinguishable from a decision of [the Supreme] Court and nevertheless
    arrives at a result different from [the Court’s] precedent”). The Arkansas Supreme
    Court did not apply a rule that contradicts the governing law set forth in the U.S.
    Supreme Court’s cases; on the contrary, the Arkansas Supreme Court applied
    Strickland v. Washington, 
    466 U.S. 668
     (1984), the decision which established the
    general standard for evaluating ineffective assistance of counsel claims, see Knowles
    v. Mirzayance, 556 U.S. ---, 
    129 S. Ct. 1411
    , 1419 (2009). Crawford has not
    identified a decision of the U.S. Supreme Court involving a set of facts that are
    materially indistinguishable from the facts of his case, and we are not aware of one.
    -4-
    The question thus becomes whether an evidentiary hearing could have allowed
    Crawford to show that the Arkansas Supreme Court’s decision “involved an
    unreasonable application of” clearly established federal law. A state-court decision
    “involve[s] an unreasonable application of” clearly established federal law if the state
    court “correctly identifies the governing legal rule but applies it unreasonably to the
    facts of a particular prisoner’s case.” Williams v. Taylor, 529 U.S. at 407-08. There
    is no dispute that the Arkansas Supreme Court correctly identified the governing law.
    In particular, the court noted that to obtain the reversal of a conviction for ineffective
    assistance of counsel under Strickland, a defendant must prove two things: first, that
    “counsel’s performance was deficient,” and second, “that the deficient performance
    prejudiced the defense.” See Strickland, 
    466 U.S. at 687
    . Although the Arkansas
    Supreme Court held that Crawford failed to show either deficient performance or
    prejudice, we need address only the ruling on prejudice. See Williams v. Norris, 
    576 F.3d at 858
    .
    In reviewing an ineffective assistance claim under the “unreasonable
    application” clause of § 2254(d)(1), “[t]he question ‘is not whether a federal court
    believes the state court’s determination’ under the Strickland standard ‘was incorrect
    but whether that determination was unreasonable—a substantially higher threshold.’”
    Mirzayance, 
    129 S. Ct. at 1420
     (quoting Schriro, 
    550 U.S. at 473
    ). “And, because the
    Strickland standard is a general standard, a state court has even more latitude to
    reasonably determine that a defendant has not satisfied that standard.” 
    Id.
     (citing
    Yarborough v. Alvarado, 
    541 U.S. 652
    , 664 (2004)). Here, the Arkansas Supreme
    Court found that Crawford’s factual allegations did not prove that his counsel’s
    alleged error—not calling Hamdini as a witness—prejudiced his defense. In this
    context, “prejudice” means “a reasonable probability that, but for counsel’s
    unprofessional error[], the result of the proceeding would have been different.”
    Strickland, 
    466 U.S. at 694
    . In turn, a “reasonable probability” means “a probability
    sufficient to undermine confidence in the outcome.” 
    Id.
     The Arkansas Supreme
    Court determined that there was no prejudice under Strickland because “even had Mr.
    -5-
    Hamdini testified as [Crawford] alleged that he would, [Crawford] did not show that
    this testimony was sufficient to have changed the outcome of the trial.” In other
    words, Crawford failed to prove that there was a reasonable probability that Hamdini’s
    testimony would have led to his acquittal on either the kidnapping charge or the rape
    charge.
    Having carefully reviewed the record, we find that the Arkansas Supreme Court
    reasonably applied Strickland to the facts of this case. As the district court put it, the
    State presented “ample” evidence at trial that Crawford kidnapped the victim. It is
    highly improbable that Hamdini’s testimony would have caused the jury to acquit
    Crawford on the kidnapping charge. See Mirzayance, 
    129 S. Ct. at 1422
    . And it is
    even more improbable that Hamdini’s testimony—which apparently would not have
    addressed the rape at all—would have caused the jury to acquit Crawford on the rape
    charge. In light of these considerations, an evidentiary hearing concerning Hamdini’s
    testimony would not have allowed Crawford to show that the Arkansas Supreme
    Court’s decision involved an unreasonable application of Strickland. See Schriro, 
    550 U.S. at 474
    ; Johnston, 
    288 F.3d at 1059
    . Accordingly, the district court did not abuse
    its discretion in dismissing Crawford’s petition without holding an evidentiary
    hearing.
    For the foregoing reasons, we affirm the judgment of the district court.
    _____________________________
    -6-