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Rainer v. Kelley

United States Court of Appeals, Eighth Circuit

August 1, 2017

Shawn Trevell Rainer Plaintiff- Appellant
Wendy Kelley, Director, Arkansas Department of Corrections Defendant-Appellee

          Submitted: March 8, 2017

         Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff

          Before RILEY, [1] Chief Judge, GRUENDER, Circuit Judge, and GRITZNER, [2] District Judge..

          GRITZNER, District Judge.

         Shawn Rainer (Rainer) was convicted of second-degree murder following a jury trial in Arkansas state court and sentenced as a habitual offender to eighty years' imprisonment. Rainer petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, arguing ineffective assistance of counsel. The district court[3] dismissed the petition but granted a certificate of appealability, see 28 U.S.C. § 2253(c)(1)-(2), on one ground. This appeal followed. We affirm.

         I. BACKGROUND

         On June 14, 2009, Takina Douglas, Rainer's girlfriend, placed a 911 call, telling the dispatcher she had been stabbed. First responders arrived at the apartment, but Douglas died of her injuries without communicating how she was stabbed. Rainer told law enforcement that he and Douglas had been arguing when Douglas came at him with a knife. Rainer said he and Douglas further exchanged words, then she ran down the hallway, tripped on the telephone cord, and fell on the knife.

         A. Trial and Direct Appeal

         Rainer was charged with first-degree murder in the Mississippi County Circuit Court, Arkansas Chickasawba District Criminal Division. The case proceeded to trial and the state moved in limine to exclude evidence Douglas had been incarcerated for committing assaults using knives and to exclude potential witness testimony that six months earlier, Douglas stabbed Rainer, although no charges were filed against her. During an unreported, pre-trial hearing, the circuit court granted the state's motion in limine. No record was made of the hearing or the circuit court's ruling. For other reasons, the trial was continued for almost one year.

         When trial commenced, Rainer's counsel did not renew objections to the court's motion in limine ruling. No evidence or testimony regarding Douglas' past assaults with knives nor her prior attack upon Rainer came into evidence. Rainer did not testify. After the close of evidence, as the parties prepared to give their closing statements, Rainer's trial counsel brought up the circuit court's ruling in limine and requested assurances that the state would not make any statements regarding a lack of evidence to support Rainer's defense that Douglas had the knife and fell on it. It was agreed that no such statements would be made. The jury found Rainer guilty of second-degree murder. During the sentencing phase, Rainer was found to be a violent habitual offender and was sentenced to eighty years' imprisonment.

         Rainer filed a motion for new trial arguing the state presented insufficient evidence to support the verdict. The circuit court denied the motion. Rainer appealed, and the sole issue on direct appeal was sufficiency of the evidence. The Arkansas Court of Appeals affirmed the conviction, see Rainer v. State, No. CACR 12-80, 2012 WL 5328599 (Ark. Ct. App. Oct. 24, 2012), and denied Rainer's petition for rehearing. The Arkansas Supreme Court denied his petition for review.

         B. State Post-Conviction Relief Proceedings

         Rainer filed a petition for post-conviction relief (PCR) under Arkansas Rule of Criminal Procedure 37.1. Represented by new counsel (PCR counsel), Rainer asserted two grounds for relief. Rainer's first ground was a claim of ineffective assistance by his trial and appellate counsel for not appealing the circuit court's ruling in limine disallowing evidence of Douglas' two assault cases that involved knives. As his second ground for relief, Rainer, who was charged with being a "small habitual offender, " asserted his trial and appellate counsel provided ineffective assistance by not objecting during the sentencing phase to the presentation of evidence that he was a "serious violent offender."

         The circuit court judge who presided over Rainer's trial also presided over Rainer's Rule 37 proceeding. At the Rule 37 hearing, a discussion ensued regarding the circuit court's oral ruling on the state's motion in limine. At the request of Rainer's PCR counsel, the judge, prosecutor, and Rainer's trial counsel made a "bystander affidavit, " detailing their recollection of the arguments and the oral ruling the circuit court made three years earlier. Rainer's trial counsel testified that he believed the circuit court granted the motion in limine under Arkansas Rule of Evidence 404. Thereafter, Rainer's trial counsel testified that he did not appeal the circuit court's motion in limine ruling because there was no record of the ruling. In support of ground one of the PCR petition, PCR counsel argued "the [c]ourt was incorrect in [granting the state's motion in limine] and you should reconsider that, and that's a new trial issue" that "fits all the elements of . . . the Rules of Evidence . . . ." J.A. at 442. PCR counsel reiterated, "I think the [c]ourt erred, respectfully, by not letting it come in in the first place." J.A. at 444. The circuit court asked, "[h]ow does this fit within Rule 37?" J.A. at 445. PCR counsel responded, "[i]f necessary I'll amend [the PCR petition] with leave of the Court . . . to say it's a straight process issue because now we know why it wasn't appealed, there was no record on it." Id. In resistance, the state argued that evidence of Douglas' propensity was irrelevant given that Rainer's defense was accident and not self defense.

         Noting Rainer's trial and appellate counsel did an "excellent job defending" Rainer, J.A. at 449, the circuit court concluded that trial counsel had not been "ineffective for not appealing my [motion in limine] ruling, even had there been a record because frankly the [Arkansas] Supreme Court and the [Arkansas] Court of Appeals on those kinds of issues give such deference to the trial court." J.A. at 447. The circuit court surmised that "if [trial counsel] made a mistake it was in not renewing the motion after I've heard the testimony where it's in my mind where I could properly weigh it." J.A. at 449 (emphasis added). The circuit court then speculated, "I have to believe that had the motion been made on the record and it had been fresh on my mind, I don't know for certain that I would have allowed it in evidence. I don't know for certain because I would have wanted a lot of details . . . ." J.A. 448. The circuit court reasoned, "I am not saying that every one of those things should come into evidence because at this point I don't know enough of the details. But at the very least the prior incident between the two, I would have allowed into evidence had it been fresh on my mind and it had not been presented in the way that it was presented." J.A. at 449-50. The circuit court announced from the bench, "[a]nd so for all of those reasons I'm granting the motion for a new trial." J.A. at 450. The circuit court asked Rainer's PCR counsel to prepare an order.

         Within an hour of the hearing, the following written order on the Rule 37 petition was filed:

         The Rule 37.1 petition came on for hearing today, July 22, 2013, and the court makes the following ...

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