Barry W. Register v. Larry Norris ( 1997 )


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  •                                     ___________
    No. 96-1726
    ___________
    Barry W. Register,                       *
    *
    Appellant,                 *
    *
    v.                                  *   Appeal from the United States
    *   District Court for the
    Larry Norris, Director,                  *   Eastern District of Arkansas.
    Arkansas Department of                   *
    Correction,                              *          [UNPUBLISHED]
    *
    Appellee.                  *
    ___________
    Submitted:   April 16, 1997
    Filed:        May 9, 1997
    ___________
    Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and
    BEAM, Circuit Judge.
    ___________
    PER CURIAM.
    Barry W. Register appeals from a judgment of the district court
    dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254.
    We affirm.
    Register was convicted of theft of property and criminal mischief and
    because of prior convictions was given an enhanced sentence of a total of
    forty years imprisonment.     On direct appeal, he argued that under a state
    evidentiary rule the trial court had
    erred in excluding the guilty plea hearing testimony of his codefendant,
    Donny Whittenburg, in which, inter alia, he told the court "It was just me.
    I picked up Barry Register."           The state supreme court disagreed, holding
    that Register had not demonstrated that Whittenburg was unavailable, as the
    rule required.     Register v. State, 
    855 S.W.2d 320
    , 322 (Ark. 1993).                     In
    particular, the state court noted that Register had not made a good faith
    effort to procure Whittenburg’s attendance at trial.                
    Id. In his
    federal habeas petition, Register raised numerous grounds for
    relief, including a claim that his counsel was ineffective for failing to
    subpoena Whittenburg.      The district court agreed with the state that all
    of the grounds were procedurally defaulted and that Register had not
    demonstrated     cause   and    prejudice    or   actual    innocence      to   excuse    the
    defaults.
    On appeal, Register renews his claim that counsel was ineffective for
    failing to subpoena Whittenburg.            The district court correctly held that
    the claim was procedurally defaulted and that Register had not demonstrated
    cause and prejudice or actual innocence under Schlup v. Delo, 
    513 U.S. 298
    (1995), to excuse the defaults.         On appeal, Register also raises claims of
    prosecutorial misconduct and evidentiary error.               We do not address these
    claims.   As the state points out, Register failed to raise these claims in
    the   district   court.        Also,   as   the   state    points   out,    his   claim    of
    evidentiary error and his claim that counsel violated the state’s code of
    professional conduct involve matters of state law not cognizable in a
    federal habeas petition.        To the extent that Register attempts to cast the
    claims as federal constitutional violations,1 we agree with the state that
    1
    Concerning his claim that the trial court erred in excluding
    Whittenburg’s guilty plea hearing testimony, Register suggests that
    the testimony was admissible under United States v. Inadi, 
    475 U.S. 387
    , 391 (1986), in which the Supreme Court held that the
    Confrontation Clause did not require “a showing of unavailability
    as a condition to admission of the out-of-court statements of a
    nontestifying coconspirator.”     Even if Register’s claim were
    properly before this court, Inadi would not provide support. In
    his brief Register indicates that at trial he had waived a
    Confrontation Clause claim. Moreover, Register was not charged
    with conspiracy and Whittenburg’s guilty plea hearing testimony was
    -2-
    they are defaulted
    not a statement “made while [a] conspiracy is in progress.” 
    Id. at 395.
    In Inadi, the Court reasoned that unavailability was not a
    prerequisite to admission because statements made during the course
    of a conspiracy “provide evidence of the conspiracy’s context that
    cannot be replicated, even if the declarant testifies to the same
    matters in court.” 
    Id. Concerning his
    prosecutorial misconduct claim, Register
    asserts that the prosecutor violated his due process rights by
    intentionally misleading his counsel with false assurances that
    Whittenburg would appear as a state’s witness. Although Register
    did not raise a due process claim in the state court, we note that
    in rejecting his claim of evidentiary error, the state court
    specifically found that “the State’s attorney did not make any
    assurances that the codefendant would be produced for trial.”
    
    Register, 855 S.W.2d at 429
    .
    We add only that our holding here does not limit any
    appropriate state action for prosecutorial misconduct or executive
    clemency.
    -3-
    because Register did not raise them in the state court.
    Accordingly, the judgment is affirmed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -4-
    

Document Info

Docket Number: 96-1726

Filed Date: 5/9/1997

Precedential Status: Non-Precedential

Modified Date: 4/18/2021