United States District Court, E.D. Arkansas, Pine Bluff Division
BETH DEERE, Magistrate Judge.
I. Procedures for Filing Objections
This Recommended Disposition ("Recommendation") has been sent to United States District Court Judge James M. Moody, Jr. Any party may file written objections to this Recommendation.
Objections must be specific and must include the factual or legal basis for the objection. An objection to a factual finding must identify the finding of fact believed to be wrong and describe the evidence that supports that belief.
An original and one copy of your objections must be received in the office of the United States District Court Clerk within fourteen (14) days of this Recommendation. A copy will be furnished to the opposing party.
If no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may also waive any right to appeal questions of fact.
Mail objections to:
A Pulaski County jury convicted Fredrick Dewayne Mason of two counts of aggravated robbery, two counts of theft of property, and one count of second-degree battery. As a result, he was sentenced to a total of 660 months in the Arkansas Department of Correction.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j), Mr. Mason's appellate counsel filed a motion to withdraw on the ground that the appeal was without merit. Mason v. State, 2009 Ark.App. 794, 2009 WL 4377825, *1. The motion was accompanied by an abstract of the proceedings below and a brief discussing seven points in the record that might arguably support an appeal. Id. Mr. Mason then filed, pro se, seven points for reversal. Id. The Arkansas Court of Appeals found that, of the seven issues raised by Mr. Mason, six were either "wholly outside the record, raised for the first time on appeal, fully covered in his counsel's brief, or otherwise not preserved for appellate review." Id. The court of appeals considered Mr. Mason's argument that the trial court erred by not asking him whether he wanted to testify at trial, but held that Mr. Mason's silence was a knowing and voluntary waiver of the right to testify and affirmed. Id. at *2-*3.
Mr. Mason then filed a petition for postconviction relief, which the trial court denied following a hearing. Mason v. State, 2013 Ark. 492, *1 (2013). Mr. Mason appealed claiming trial counsel was ineffective for: (1) failing to move for a directed verdict, (2) "opening the door" to prejudicial testimony, and (3) failing to investigate and prepare for trial. Id. The Arkansas Supreme Court affirmed the circuit court's order. Id.
Here, in his petition (docket entry #2) and amended petition (#9), Mr. Mason claims his trial counsel was ineffective for failing to move for a directed verdict, opening the door to prejudicial testimony during cross-examination, and failing to conduct a pretrial investigation. Mr. Mason also claims that his appellate counsel was ineffective for filing a no-merit brief under Anders. (#9 at pp. 15-16) For the reasons set forth below, the Court recommends that Mr. Mason's petition (#2) and amended petition (#9) be DENIED.
A. Standard of ...