Marcyniuk was convicted of murder and sentenced to death by the State of Arkansas for the 2008 killing of his ex-girlfriend. His conviction and sentence were affirmed on both direct appeal and a petition for habeas relief under Arkansas state law. In preparing to file a federal habeas petition, habeas counsel first learned that an off-the-record jury selection procedure had taken place. Prior to trial, lengthy questionnaires had been sent to prospective jurors and, after reviewing their responses, Marcyniuk’s trial counsel, along with the prosecution, submitted a list of 15 jurors to “strike” from the venir, those 30 individuals having not been called in for trial. The trial record made no reference to any of this. However, a separate juror information file was maintained by the circuit clerk.
Marcyniuk then included this claim in his habeas petition, alleging it to have violated his right to be present, right to a public trial, and right to appellate review and constituted ineffective assistance of trial counsel. The district court dismissed these claims without discovery or an evidentiary hearing, having found them to be procedurally barred.
The Eighth Circuit reviewed that dismissal for an abuse of discretion, finding no error. There was no dispute that Marcyniuk had not raised these claims previously, meaning they were procedurally barred absent a showing of cause and prejudice to overcome the default. The Eighth Circuit rejected each of his attempts to show cause, however, finding that Marcyniuk failed to show (1) that the proceedings were rendered fundamentally unfair by appellate counsel’s failure to raise the claim of ineffective assistance of trial counsel previously, (2) that state officials had interfered with his ability to raise the claim earlier, or (3) that the claims were not reasonable available to prior counsel.
Noteworthy practice points: regarding his second claim of cause, the Eighth Circuit found relevant that Marcyniuk’s notice of appeal had not explicitly requested that jury selection records be included by the clerk of court on appeal. Thus, there was nothing false or misleading about the clerk’s assertion that the record they transmitted was “true and complete.” As to his third claim, nothing prevented Marcyniuk’s appellate counsel from obtaining these records from the clerk’s office previously, as it is apparently common practice for jury selection records to be maintained separately.
Appeal from Eastern District of Arkansas
Opinion by Shepherd, joined by Loken and Stras
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