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 D. P. Marshall Jr. 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:
Petitioner Anthony Craigg seeks habeas corpus relief pursuant to 28 U.S.C. §2254. He is in the custody of the Arkansas Department of Correction (ADC) as a result of his 2011 rape conviction following a jury trial in Washington County Circuit Court. He was sentenced, as an habitual offender, to life imprisonment. On appeal to the Arkansas Supreme Court, Mr. Craigg argued that the trial court erred by allowing the prosecution to introduce a 1998 Oklahoma conviction for lewd molestation into evidence. The appeal was unsuccessful. Craigg v. State, 2012 Ark. 387. The petitioner sought Rule 37 relief in state court. Following a hearing, the trial court denied relief. The Arkansas Supreme Court dismissed the appeal, finding "it is clear from the record that appellant could not prevail if an appeal were permitted to go forward." Craigg v. State, 2014 Ark. 71. The petitioner also sought, without success, permission to file a belated appeal in state court. The petition for federal habeas corpus relief was filed on July 10, 2014.
He advances the following claims for relief:
1. The trial court erred in allowing the introduction of a highly prejudicial prior offense into evidence violating his right to a fair and impartial jury;
2. The trial court and the Arkansas Supreme Court erred in ruling that the pedophile exception applied, which allowed for the introduction of the prior conviction;
3. He received ineffective assistance of counsel when his attorneys failed to object, move to strike, or move for a mistrial based upon the lack of 404(b) evidence; and
4. The Arkansas Supreme Court reconstructed petitioner's argument on direct appeal, depriving him of due process by failing to address his argument that the trial court erred when it admitted into evidence the prior conviction without any additional facts about the conviction.
The respondent contends these claims are without merit and/or procedurally barred. Specifically, the respondent contends grounds one and four were not raised as federal constitutional claims in state court and should be barred on that basis. Respondent contends ground two is procedurally barred due to the petitioner's failure to raise the claim on direct appeal. For the purpose of this Findings and Recommendation, we will liberally construe the pleadings and assume the grounds were adequately raised in state court, and consider the merits of the four arguments of Mr. Craigg. 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)).
Trial Court error in admitting Oklahoma conviction into evidence: On direct appeal, the petitioner challenged the admission of the Oklahoma conviction, and the Arkansas Supreme Court summarized the facts and addressed this issue in the following fashion:
A Washington County jury convicted appellant Anthony Craigg of rape and sentenced him to life in prison without the possibility of parole. On appeal, he argues that the trial judge erred by allowing the introduction of a prior offense into evidence under Arkansas Rule of Evidence 404(b). Because appellant was convicted of rape and sentenced to life imprisonment without parole, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2). We affirm because the trial judge did not abuse his discretion in finding that appellant's prior conviction satisfied the pedophile exception to Rule 404(b).
On July 15, 2011, the State filed a felony information charging appellant with one count of rape and one count of failure to comply with sex offender registration requirements. Specifically, the State alleged that appellant engaged in oral sex with a victim who was physically helpless and unable to consent in violation of Arkansas Code Annotated section 5-14-103(a)(2) (Repl.2006). In an amended felony information, the State dropped the ...