United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS
JOE J. VOLPE, Magistrate Judge.
The following recommended disposition has been sent to Chief United States District 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 a 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 new hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the new hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the new hearing 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 new hearing.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and "Statement of Necessity" to:
A Yell County jury convicted Petitioner, Jamie Fowler, of manufacturing methamphetamine and possession of drug paraphernalia on January 27, 2010. (Doc. No. 7-2.) He was sentenced as a habitual offender to sixty-five years' imprisonment in the Arkansas Department of Correction. ( Id. ) On direct appeal to the Arkansas Court of Appeals, Mr. Fowler argued that the evidence was insufficient to support his convictions; the trial court erroneously denied his motion to suppress evidence; evidence of his prior conviction was improperly was admitted at trial; and the trial court erred in denying his motion for mistrial. (Doc. No. 7.) The Arkansas Court of Appeals affirmed in an opinion issued on May 4, 2011. Fowler v. State, 2011 Ark.App. 321.
Six weeks later, on June 17, 2011, Mr. Fowler filed a Rule 37 Petition in Yell County Circuit Court. (Doc. No. 7-5.) The trial court denied his petition on October 5, 2011. (Doc. No. 7-3.) On October 19, 2011, Mr. Fowler timely filed a notice of appeal from that decision, but he failed to tender the record to the Arkansas Supreme Court in a timely manner. ( Id. ) On June 11, 2012, he filed a pro se motion for rule on clerk and affidavit of indigency. ( Id. ) The Arkansas Supreme Court denied his motion on September 19, 2013, because his petition was not accompanied by the required verification. See Fowler v. State, 2013 Ark. 340. As the Respondent addresses in a footnote, while this may appear as a harsh ramification of a minor error, case law provides no additional relief for pro se appellants. There is no special consideration on appeal for pro se petitioners, Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000), and the responsibility to provide an adequate record for the court's review lies solely on the appellant. Sullivan v. State, 301 Ark. 352, 354, 784 S.W.2d 155, 156 (1990) ( per curiam ).
In the instant Petition filed March 6, 2014, Mr. Fowler alleges the following four claims: (1) he was constitutionally denied effective assistance of trial counsel, in violation of the Sixth and Fourteenth Amendments to the United States Constitution; (2) the search warrant produced at trial was in violation of the Best Evidence Rule; (3) the confidential informant was unreliable and he [Fowler] was denied discovery evidence; and (4) he was attacked by the vindictive prosecuting attorney in closing arguments. (Doc. No 1.)
A. Statute of ...