Samuel Hartman v. Dexter Payne, Director Arkansas Department of Corrections

United States Court of Appeals
For the Eighth Circuit
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No. 19-3639
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Samuel Hartman
Plaintiff - Appellant
v.
Dexter Payne, Director Arkansas Department of Corrections
Defendant - Appellee
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Appeal from United States District Court
for the Western District of Arkansas - Ft. Smith
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Submitted: January 12, 2021
Filed: August 9, 2021
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Before GRUENDER, BENTON, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
Samuel Hartman has filed a petition for a writ of habeas corpus, see 28 U.S.C.
§ 2254, in an effort to overturn an Arkansas rape conviction. He blames the lawyers
who represented him in state court for his confinement. The district court1 had a
1 The Honorable P. K. Holmes, III, United States District Judge for the
Western District of Arkansas.

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different view and rejected his ineffective-assistance-of-trial-counsel claim. We
conclude that the claim was procedurally defaulted, so we affirm the denial of habeas
relief.
I.
An Arkansas jury heard evidence that Hartman raped his stepdaughter by
repeatedly penetrating her with his fingers and penis. Based on the evidence it heard,
including testimony from the stepdaughter herself, the jury found Hartman guilty of
rape. He received a life sentence, and the Arkansas Supreme Court affirmed the
conviction on direct appeal. See Hartman v. State, 454 S.W.3d 721, 723–24 (Ark.
2015).
Not long after, Hartman initiated state postconviction proceedings by filing a
petition alleging that trial counsel had been ineffective for failing to present evidence
that both he and his wife had chlamydia, a sexually transmitted disease. In his view,
counsel’s misstep took away a “powerful[ly] exculpatory” argument: he could not
have raped his stepdaughter without infecting her too. After holding an evidentiary
hearing, the circuit court rejected the ineffective-assistance-of-trial-counsel claim,
in large part based on the testimony of trial counsel, who denied knowing about the
chlamydia.
About a month after the circuit court denied the petition, Hartman’s
postconviction counsel filed a motion for reconsideration. In the interim, he had
found a note written by trial counsel. It said that the “wife had clamedia [sic] ended
up both had clamedia [sic],” which seemed to contradict his testimony that he was
unaware of it. The circuit court denied the motion without comment.
Hartman fared no better at the Arkansas Supreme Court. See Hartman v.
State, 508 S.W.3d 28, 33–34 (Ark. 2017). It refused to consider the merits of his
ineffective-assistance-of-trial-counsel claim because, perhaps surprisingly, he never
argued that the circuit court was wrong when it initially denied relief. See id. at 34

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n.4. Instead, he focused his attention on the denial of the motion for reconsideration,
which the Arkansas Supreme Court dealt with in short order by relying on a
procedural rule that says that “[n]o petition for rehearing shall be considered.” Ark.
R. Crim. P. 37.2(d); see Hartman, 508 S.W.3d at 33–34, 34 n.4.
By filing a timely petition for a writ of habeas corpus, Hartman has now turned
to federal court. See 28 U.S.C. § 2254. After hearing from witnesses at an
evidentiary hearing, a magistrate judge recommended granting relief on his
ineffective-assistance-of-trial-counsel claim. The district court, for its part,
disagreed and denied the petition in its entirety.
II.
Hartman asks us to review the merits of his ineffective-assistance-of-trial-
counsel claim even though the Arkansas Supreme Court did not. Generally
speaking, “when a state court [has] declined to address a prisoner’s federal claim[]
because” of “a state procedural requirement,” federal courts treat it as procedurally
defaulted and will not review it either. Coleman v. Thompson, 501 U.S. 722, 729–
30 (1991); see also Martinez v. Ryan, 566 U.S. 1, 9 (2012) (explaining that the state
procedural requirement must be “a nonfederal ground adequate to support the
judgment” and “firmly established and consistently followed”). One exception to
this general rule is when a prisoner can establish “cause for the default and actual
prejudice.”2 Coleman, 501 U.S. at 750.
2 Hartman does not ask us to apply another exception, which allows us to
correct “a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see Twin
Cities Galleries, LLC v. Media Arts Grp., Inc., 476 F.3d 598, 602 n.1 (8th Cir. 2007)
(explaining that arguments “raised for the first time at oral argument” are “waived”).
Even if he had, however, he has not established that “no reasonable juror would have
found [him] guilty.” Thomas v. Payne, 960 F.3d 465, 473 (8th Cir. 2020) (alteration
in original) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

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There is no serious dispute that Hartman procedurally defaulted his
ineffective-assistance-of-trial-counsel claim. See id. at 729–30. Instead, he tries to
resurrect it on federal habeas review through the cause-and-prejudice exception. Id.
at 750. The cause, he says, is that postconviction counsel was ineffective for failing
to find the note earlier so that he could impeach trial counsel with it during the
evidentiary hearing in state court. If the argument sounds complicated, it is.
What Hartman has in mind is the Martinez exception. Usually, ineffective
assistance of state postconviction counsel does not provide cause for a procedural
default. See Coleman, 501 U.S. at 752–55. Under Martinez, however, “a procedural
default will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance [of trial counsel] if, in the initial-review collateral
proceeding . . . [postconviction] counsel . . . was ineffective.” 566 U.S. at 17
(emphasis added); see also Sasser v. Hobbs, 735 F.3d 833, 853 (8th Cir. 2013)
(applying Martinez to Arkansas proceedings).
Timing matters. See Martinez, 566 U.S. at 9, 16; see also Thomas, 960 F.3d
at 469. If the default occurs at the initial-review collateral proceeding, then
postconviction counsel’s ineffectiveness can provide cause. See Martinez, 566 U.S.
at 9, 14; Thomas, 960 F.3d at 469. But when the default happens later, after “the
first occasion the State allows a prisoner to raise a claim of ineffective assistance at
trial,” it cannot. Martinez, 566 U.S. at 16; see also Thomas, 960 F.3d at 469. That
is why we have held that the Martinez exception does not apply to defaults on appeal.
See Thomas, 960 F.3d at 469.
With when being the key question here, there are two possibilities. The first
is that the default happened when the case was in front of the circuit court, which
means that the Martinez exception would be available. The other is that it happened
sometime later, in which case postconviction counsel’s ineffectiveness would not
provide cause for Hartman’s default. In our view, the default happened later.

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Key to our conclusion is the fact that the circuit court heard and decided
Hartman’s ineffective-assistance-of-trial-counsel claim on the merits. See Thomas,
960 F.3d at 472–73 (explaining that, when a claim is adjudicated on the merits in an
initial-review collateral proceeding, there is no procedural default); cf. Worthington
v. Roper, 631 F.3d 487, 497 (8th Cir. 2011) (noting that “the postconviction trial
court’s discussion of counsel’s performance—combined with its express
determination that the ineffective-assistance claim as a whole lacked merit—plainly
suffices as an adjudication on the merits”). After an evidentiary hearing, it decided
both that trial counsel was never “informed” about the chlamydia and that, in any
event, the evidence would have been irrelevant.
To be sure, the circuit court went on to note that Hartman “fail[ed] to preserve
th[e] claim,” but only because he presented “no facts” showing how the evidence
would have been relevant to his defense. Although the phrase “fail[ed] to preserve”
may make this sound like default, the court was commenting on “the weakness of
[Hartman’s] claim[] on the merits,” Thomas, 960 F.3d at 472, not his failure to raise
it. See Lambrix v. Sec’y, Fla. Dep’t of Corr., 756 F.3d 1246, 1261 (11th Cir. 2014)
(“Claims reviewable on the merits are, quite simply, not procedurally
defaulted . . . .”).
It makes no difference that the note only came up after the circuit court made
its initial decision. After all, it “merely provide[d] additional evidentiary support
for” a claim that the circuit court had already considered and rejected. Rhines v.
Young, 899 F.3d 482, 495 (8th Cir. 2018) (quotation marks omitted). Just because
Hartman’s claim would have been stronger had postconviction counsel found the
note earlier does not mean that the failure to locate it was itself a default at the initial-
review stage. See Norris v. Brooks, 794 F.3d 401, 405 (3d Cir. 2015) (declining to
“conflat[e] . . . shoddy advocacy and procedural default”); see also Thomas, 960
F.3d at 473 (explaining that “[t]he weakness of support for the claims in the
[postconviction] petition and hearing has no bearing on whether the claims were
actually presented”); West v. Carpenter, 790 F.3d 693, 699 (6th Cir. 2015)

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(concluding that, even if postconviction counsel’s ineffectiveness led the court to
erroneously deny a claim on the merits, the claim was not procedurally defaulted).
So if not then, when? The answer, it turns out, is that the default occurred
when the case was on appeal to the Arkansas Supreme Court. At that point, Hartman
decided not to “argue that the [circuit] court erred in denying the [ineffective-
assistance-of-trial-counsel] claim,” opting instead to focus solely on the denial of
“his motion for reconsideration.” Hartman, 508 S.W.3d at 34 n.4. Once the
Arkansas Supreme Court concluded that it was “unnecessary” to address the claim
based on his failure to raise it, it was defaulted. Id.; see Thomas, 960 F.3d at 473;
Sasser v. Payne, 999 F.3d 609, 614–15 (8th Cir. 2021); Arnold v. Dormire, 675 F.3d
1082, 1086–87 (8th Cir. 2012); see also Baptist Health v. Murphy, 373 S.W.3d 269,
289 (Ark. 2010) (“We have repeatedly made clear that we will not address arguments
that are not sufficiently developed . . . .”).
To sum up, the procedural default first occurred on appeal, not at the “initial-
review collateral proceeding,” Arnold, 675 F.3d at 1087, which takes the Martinez
exception off the table. See Thomas, 960 F.3d at 471–73 (reaching the same
conclusion); Sasser, 999 F.3d at 614–15 (same). In these circumstances, with no
cause to excuse the procedural default, “federal habeas review of the claim[] is
barred.” Coleman, 501 U.S. at 750.
III.
We accordingly affirm the judgment of the district court.
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