Billy Stewart, Sr. v. Wendy Kelley , 890 F.3d 1124 ( 2018 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 17-1517
    ___________________________
    Billy Wayne Stewart, Sr.
    lllllllllllllllllllll Plaintiff - Appellant
    v.
    Wendy Kelley, Director, Arkansas Department of Correction
    lllllllllllllllllllll Defendant - Appellee
    ____________
    Appeal from United States District Court
    for the Eastern District of Arkansas - Pine Bluff
    ____________
    Submitted: January 9, 2018
    Filed: May 29, 2018
    ____________
    Before LOKEN, BEAM, and KELLY, Circuit Judges.
    ____________
    LOKEN, Circuit Judge.
    In September 2011, a Garland County, Arkansas jury found Billy Wayne
    Stewart, Sr. guilty of raping J.H., an adult woman with the mental capacity of a young
    child. See Ark. Code Ann. § 5-14-103(a)(2)(B) (2011 Supp.). Under Arkansas law,
    after finding a defendant guilty of a felony offense, the same jury “determine[s] a
    sentence within the statutory range,” unless both parties waive jury sentencing with
    the court’s consent. See Ark. Code Ann. § 16-97-101. During Stewart’s jury
    sentencing, the prosecutor introduced evidence of his seven prior felony convictions,
    which made him a “habitual offender” punishable under Arkansas law by
    imprisonment for ten years to life. See §§ 5-4-501(b)(2)(A) (2011 Supp.), 5-14-
    103(c)(1). The trial judge erroneously instructed the jury that Stewart would be
    eligible for parole after serving 70% of his sentence if sentenced to a term of years.
    In fact, he was ineligible for parole because of a prior violent felony conviction.
    The jury sentenced Stewart to seventy years in prison. The Supreme Court of
    Arkansas affirmed the conviction on direct appeal. Stewart v. State, 
    423 S.W.3d 69
    (Ark. 2012). Stewart filed a pro se petition for post-conviction relief under Arkansas
    Rule of Criminal Procedure 37.1. The Garland County Circuit Court denied the
    petition after a hearing, and the Supreme Court of Arkansas affirmed. Stewart v.
    State, 
    443 S.W.3d 538
    (Ark. 2014). Stewart then filed a timely pro se federal habeas
    petition, raising numerous claims. The district court1 appointed counsel and directed
    supplemental briefing on the claim that trial counsel provided ineffective assistance
    when he failed to object to the erroneous sentencing instruction. The court then
    denied habeas relief but granted a certificate of appealability on this issue. Reviewing
    the district court’s decision de novo, we affirm.
    I. Background
    Stewart testified at trial that J.H.’s mother and stepfather took him in while he
    was searching for a job. He admitted to having sex with J.H. while staying at the
    family residence, and J.H. had Stewart’s child. After the jury found Stewart guilty of
    rape, the court instructed, without objection, that a sentence of life in prison would
    render Stewart ineligible for parole, but he would be eligible for parole upon serving
    70% of a sentence to a term of years. Unbeknownst to the court and counsel,
    1
    The Honorable D.P. Marshall Jr., United States District Judge for the Eastern
    District of Arkansas.
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    Stewart’s prior conviction for first degree battery made him ineligible for parole under
    Arkansas law. See §§ 16-93-609(b), 5-4-501(d)(2)(A)(vi) (2011 Supp.).
    The court instructed the jury that it was permitted to consider the possibility that
    Stewart would be paroled. During closing arguments, both attorneys referenced
    parole eligibility. The prosecutor, emphasizing Stewart’s serious crime and prior
    criminal convictions, urged that he be sentenced to life in prison or, alternatively,
    “anything that will keep him in prison for the rest of his life.” Defense counsel noted
    Stewart would be eligible for parole after serving 70% of a term of years, told the jury
    that eligibility did not guarantee release, and urged the jury take Stewart’s age into
    account (he was forty-seven years old at the time). After twenty-seven minutes of
    deliberation, the jury sentenced Stewart to seventy years in prison.
    On direct appeal, represented by different counsel, Stewart argued only that the
    trial court erred in excluding evidence of J.H.’s prior sexual conduct. Stewart’s pro
    se petition for post-conviction relief raised three grounds: that barring cross
    examination of J.H. about her prior sexual conduct violated his Sixth Amendment
    right of confrontation; ineffective assistance of trial counsel during the guilt phase;
    and a due process claim that the State’s trial preparation coerced J.H.’s testimony. In
    a supplemental petition, Stewart alleged that the prosecutor made a written pretrial
    ten-year plea offer that was never presented to Stewart (after a hearing, the trial court
    found the document was a forgery). Testifying at the Rule 37.1 hearing, Stewart
    raised a new complaint:
    [The prosecutor] explained to the jury in depth what the seventy percent
    law is. When I get to prison they put me on a one hundred percent. In
    my Rule 37 you’ll see that it speaks of the coercion and misleading the
    jury into believing that I’m gonna do seventy percent. . . .
    THE COURT: Okay, now that is not grounds for Rule 37, Mr.
    Stewart.
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    DEFENDANT STEWART: Yes, ma’am, but I did include it in
    there. [We find no reference to this issue in the Rule 37.1 petitions.]
    THE COURT: We’re not gonna go into that.
    In a post-hearing brief, Stewart specifically argued that trial counsel’s failure to object
    when the prosecutor misled the jury regarding parole eligibility was ineffective
    assistance. The trial court denied post-conviction relief without discussing this issue.
    Stewart appealed to the Supreme Court of Arkansas, reasserting this claim of
    ineffective assistance. In affirming the denial of relief, the Court stated that Stewart’s
    brief “expanded the allegations raised in the Rule 37.1 petition and discussed at the
    evidentiary hearing,” and that it would not consider new arguments on appeal.
    
    Stewart, 443 S.W.3d at 542
    .
    Stewart filed a pro se federal habeas petition, asserting in part that his trial
    counsel provided ineffective assistance by failing to object to the court’s parole
    eligibility jury instruction. After appointing counsel to assist in resolving this claim,
    the district court denied Stewart’s petition, concluding: 1) the claim was not
    procedurally defaulted; 2) trial counsel provided constitutionally deficient assistance
    because “parole eligibility statutes are clear and settled law” and the prior violent
    felony conviction “was obvious and in the case”; and 3) Stewart could not
    demonstrate prejudice resulting from this attorney error.
    II. Discussion
    As the district court recognized, this appeal presents a narrow but difficult
    ineffective assistance of counsel issue. Without question, the prosecutor who initially
    proposed the erroneous parole eligibility instruction, the trial court that gave the
    instruction, and Stewart’s trial and appellate counsel all missed a sentencing issue that
    was obvious under settled law. But the issue was belatedly identified. Trial and
    appellate counsel focused exclusively on guilt phase issues. Stewart’s pro se post-
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    conviction efforts also focused on guilt phase issues until he learned that the Arkansas
    Department of Corrections had classified him 100% parole ineligible. He then
    complained at the Rule 37.1 evidentiary hearing and, more articulately, in his post-
    conviction briefs to the trial court and the Supreme Court of Arkansas.
    By the time Stewart raised the issue, any federal claims of prosecutor
    misconduct, trial court error, or ineffective assistance of appellate counsel were
    procedurally defaulted. See Dansby v. Hobbs, 
    766 F.3d 809
    , 833-34 (8th Cir. 2014),
    cert. denied, 
    136 S. Ct. 297
    (2015). The claim of ineffective assistance of trial
    counsel was not defaulted because the Garland County trial court denied Stewart’s
    request for appointment of counsel at his Rule 37.1 post-conviction proceeding. See
    Martinez v. Ryan, 
    566 U.S. 1
    (2012); Trevino v. Thaler, 
    569 U.S. 413
    (2013).
    Under Arkansas law, “[p]arole-eligibility determinations by the [Department
    of Corrections] do not constitute a modification of a prison sentence.” Mason v.
    Hobbs, 
    453 S.W.3d 679
    , 682 (Ark.), cert. denied, 
    136 S. Ct. 147
    (2015). Thus, trial
    counsel’s deficient performance did not deprive Stewart of a due process claim that
    Ark. Code Ann. § 16-93-609(b) should not apply “when the jury, court, and
    [defendant] were unaware of the Act and did not intend for the Act to apply to the
    judgment.” Stephens v. Hobbs, 
    2012 WL 4017376
    , at *1 (Ark. 2012). The only
    preserved federal issue is whether Stewart has shown that trial counsel’s deficient
    performance prejudiced the defense at trial because there is “reasonable probability
    that, but for counsel’s unprofessional errors, the result of the proceeding would have
    been different,” in other words, that a jury properly instructed regarding parole
    eligibility would have sentenced him to a term of less than seventy years in prison.
    Strickland v. Washington, 
    466 U.S. 668
    , 694 (1984). Reasonable probability is “a
    probability sufficient to undermine confidence in the outcome.” 
    Id. Stewart need
    not
    show it is more likely than not the outcome would differ, but “[t]he likelihood of a
    different result must be substantial, not just conceivable.” Harrington v. Richter, 
    562 U.S. 86
    , 111-12 (2011).
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    We agree with the district court that the question is close, primarily because the
    prosecutor in closing argument drew the jury’s attention to the 70% rule and urged
    that it impose a term of years “that will keep him in prison for the rest of his life.” But
    we agree with the district court that Stewart did not meet his burden to show
    prejudice:
    The jury heard the troubling facts of this case: Stewart was a family
    friend. He knew his victim functioned on a first-grade or second-grade
    level. Nonetheless, when her parents took Stewart in, he had sex with
    their daughter; and she spent the next eight months unaware that she was
    carrying Stewart’s child. After hearing these facts, the jury gave Stewart
    a sentence it believed would keep him in prison [at least] until he’s
    ninety-six.
    If the jury had heard a correct parole-eligibility instruction, it’s
    possible they would have given Stewart a shorter sentence. But in light
    of the bad facts, Stewart’s age, and the lengthy sentence imposed, it’s
    just that -- a possibility. The system malfunctioned in his case, but not
    to a degree that undermines confidence in the result.
    On appeal, Stewart argues that instructing the jury on parole eligibility “creates
    a reasonable probability that a jury will calculate the parole eligibility number and add
    more time to compensate.” Applying that premise, Stewart assumes the jury added
    49 years -- 70% of its seventy-year sentence -- to Stewart’s age of 47 to reach an
    intended sentence that would not end until he was 96 years old. If the jury had been
    properly instructed he was not eligible for parole, Stewart reasons, “there is a
    reasonable probability . . . that it would have sentenced to an outcome possibly less
    than 70 years.” Certainly that is a possibility, but “not every error that conceivably
    could have influenced the outcome undermines the reliability of the result of the
    proceeding.” 
    Strickland, 466 U.S. at 693
    . Eligibility for parole does not necessarily
    mean parole will be granted, as Stewart’s trial counsel emphasized to the jury. Nor
    was the jury required to consider the possibility of parole in determining his sentence.
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    The prosecutor’s closing argument emphasized the serious nature of Stewart’s crime
    and the injury he inflicted on mentally impaired J.H. and her family -- facts the jury
    heard during the guilt phase -- and Stewart’s seven prior felony convictions. After
    deliberating less than thirty minutes, the jury imposed a sentence that would likely
    exceed Stewart’s life span whether or not he would be granted parole. On this record,
    trial counsel’s deficient performance in failing to correct the instructional error of the
    prosecutor and the trial court does not establish Strickland prejudice sufficient to
    undermine our confidence in the outcome of the proceedings.
    The judgment of the district court is affirmed.
    KELLY, Circuit Judge, dissenting.
    I agree that Stewart received objectively unreasonable assistance of counsel at
    sentencing. I respectfully dissent, however, because I believe Stewart was prejudiced
    by defense counsel’s performance. Defense counsel, the prosecutor, the trial judge,
    and the jury instructions all told the jury that Stewart would be eligible for parole after
    serving 70 percent of any term-of-years sentence imposed. The State sought a life-
    without-parole sentence, or alternatively, “anything that will keep him in prison for
    the rest of his life.” Instead, however, the jury selected a 70-year sentence, which
    under the instructions given would have made Stewart eligible for parole after 49
    years, or at age 96. See Weeks v. Angelone, 
    528 U.S. 225
    , 234 (2000) (“A jury is
    presumed to follow its instructions.”). It turns out Stewart is not eligible for parole
    at all, and the jury unwittingly imposed a sentence of 70 years without parole. This
    means Stewart will be released from prison only if he lives to be 117 years old.
    To establish prejudice, Stewart must show “a reasonable probability that, but
    for counsel’s unprofessional errors, the result of the proceeding would have been
    different.” 
    Strickland, 466 U.S. at 694
    . “A reasonable probability is a probability
    sufficient to undermine confidence in the outcome.” 
    Id. Under this
    standard, I think
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    there is a reasonable probability that, properly instructed, the same jury that believed
    it was giving Stewart a 70-year-with-parole sentence would impose something other
    than the 70-year-without-parole sentence he is actually serving. Cf. Rummel v.
    Estelle, 
    445 U.S. 263
    , 281 (1980) (“If nothing else, the possibility of parole, however
    slim, serves to distinguish [a parole-eligible defendant] from a person sentenced” to
    life without parole); Hill v. Lockhart, 
    894 F.2d 1009
    , 1010 (8th Cir. 1990) (en banc);
    Savage v. State, No. CR 06-526, 
    2007 WL 538990
    , at *2–3 (Ark. 2007) (unpublished
    per curiam). The jury declined to impose a life-without-parole sentence, and chose
    a lengthy prison term instead. And, had the jury wanted to make sure that Stewart
    would be in prison until he was 117 years old, it would have imposed a 100-year
    sentence, which under the erroneous instruction would have rendered him ineligible
    for parole until then.
    ______________________________
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