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Grant v. Richard Proctor

United States District Court, E.D. Arkansas, Pine Bluff Division

November 13, 2014

ABRAHAM GRANT, Petitioner,
v.
RICHARD PROCTOR and CHALK MITCHELL, Respondent.

RECOMMENDED DISPOSITION

BETH DEERE, Magistrate Judge.

I. Procedure for Filing Objections

The following Recommended Disposition ("Recommendation") has been sent to United States District Court Chief Judge Brian S. Miller. Mr. Grant - or 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 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 Miller 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 your objections and "Statement of Necessity" to:

II. Background

In 2003, a Phillips County jury found Abraham Grant guilty of capital murder and first-degree battery. The trial court sentenced him to an aggregate term of life imprisonment, without the possibility of parole, to be served in the Arkansas Department of Correction.

Mr. Grant filed a direct appeal of his conviction with the Arkansas Supreme Court. As his sole point on appeal, he argued the trial court erred in admitting statements into evidence under the dying declaration exception to the hearsay rule. The Supreme Court found Mr. Grant's argument to be without merit and affirmed the judgment of the circuit court. Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004). Mr. Grant did not seek timely post-conviction relief in the trial court under Rule 37 of the Arkansas Rules of Criminal Procedure.

On February 22, 2005, Mr. Grant filed a habeas corpus petition in this Court under 28 U.S.C. § 2254, challenging his capital murder and first-degree battery convictions. He raised the following grounds for relief: (1) he was denied the right to a speedy trial; (2) insufficient evidence to support the convictions; (3) jury misconduct; (4) conflicting statements from witnesses; (5) Captain David Lovell changed his statement on the stand under oath "from that which was in the motion discovery on the investigation report sheet, " and (6) ineffective assistance of counsel.

On October 3, 2005, Magistrate Judge John F. Forster, Jr., dismissed the habeas petition with prejudice, finding that Claims 1, 3, and 6 were procedurally barred and that the other claims were without merit. Grant v. Norris, No. 5:05CV00058, 2005 WL 2885514 (E.D. Ark. Oct. 3, 2005). Mr. Grant filed a notice of appeal, which the Court of Appeals for the Eighth Circuit treated as an application for a certificate of appealability. On September 7, 2006, the Eighth Circuit Court denied the application for a certificate of appealability and dismissed the appeal. Grant v. Norris, No. 05-4039 (8th Cir. Sept. 7, 2006).

In 2006, Mr. Grant filed a pro se petition for writ of mandamus and a pro se petition for declaratory judgment in the Phillips County Circuit Court, attacking the credibility of witnesses at his trial and alleging errors by the trial court in the admission of evidence at trial. The Phillips County Circuit Court denied the petitions, finding that the appropriate avenue for Mr. Grant's claims was an appeal from his convictions, and not a petition for writ of mandamus or petition for a declaratory judgment. Mr. Grant appealed to the Arkansas Supreme Court, which dismissed the appeal, holding that a mandamus action was not a substitute for an appeal and a declaratory judgment action could not serve as a means to reargue evidentiary issues that could have been, or were, raised in a criminal trial. Grant v. State, No. CR 07-224, 2007 Ark. LEXIS 282 (Ark. Sup.Ct. May 3, 2007).

Mr. Grant filed a second § 2254 petition with this Court on May 8, 2007, claiming that the jury sentenced him in violation of Arkansas statutes and rules of evidence and "on speculation and conflicting testimony." He also alleged that the trial court improperly denied him a hearing on his petition for writ of mandamus and petition for declaratory judgment and that the Arkansas Supreme Court dismissed his appeal without holding a hearing "due ...


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