United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS
H. DAVID YOUNG, Magistrate Judge.
The following recommended disposition has been sent to United States District Court Judge Brian S. Miller. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Jonathan Brawner seeks a writ of habeas corpus pursuant to 28 U.S.C. §2254. Mr. Brawner is currently in the custody of the Arkansas Department of Correction (ADC) as a result of convictions, following a bench trial in Faulkner County Circuit Court, for first degree stalking and violation of a protective order. Mr. Brawner was sentenced to ten years imprisonment. On direct appeal, Mr. Brawner raised four claims for relief: (1) insufficient evidence to support his conviction; (2) trial court error in requiring him to register pursuant to Ark. Code Ann. § 12-12-901 et seq.; (3) trial court error in failing to credit him for incarceration time prior to the trial and for running his sentences consecutively; and (4) trial court error in admitting evidence of Brawner's paranoid behavior and boasting of having planned and committed previous murders. The Arkansas Court of Appeals denied relief on grounds one, two, and four, and affirmed the convictions. Brawner v. State, 2013 Ark.App. 413.
The respondent concedes that the present federal habeas corpus petition is timely filed. He advances the following claims for habeas corpus relief:
1. Insufficiency of the evidence;
2. Trial court error in requiring him to register as a sex offender pursuant to Arkansas law; and
3. Trial court error in admitting evidence pursuant to Rule 404(b) of the Arkansas Rules of Evidence.
The respondent contends these grounds are without merit, that grounds two and three are not cognizable because they raise only state court issues, not constitutional claims, and that ground two is procedurally barred. We liberally construe the petition, including grounds two and three, to assert constitutional claims. Specifically, we will view these claims as due process challenges to the rulings made in state court. Therefore, we decline to dismiss grounds two and three on the basis that they raise only issues of Arkansas law. With regard to procedural default, we will also address the merits of this claim. In considering this issue, we are guided by the following language of the Eighth Circuit Court of Appeals:
In cases such as this, it might well be easier and more efficient to reach the merits than to go through the studied process required by the procedural default doctrine. Recent commentary points up the problems with the cause and prejudice standard:
[T]he decision tree for habeas review of defaulted claims is intricate and costly.... In essence, Sykes and Strickland require habeas lawyers and federal judges and magistrates to work through the equivalent of a law school exam every time a defendant tries to escape procedural default.
McKinnon v. Lockhart, 921 F.2d 830, 833 n.7 (8th Cir. 1990) (quoting Jeffries & Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Corpus, 57 U.Chi.L.Rev. 679, 690 (1990)). We now consider Mr. Brawner's claims for relief.
Insufficient Evidence: The Arkansas Court of Appeals considered Mr. Brawner's challenge to the ...