United States District Court, W.D. Arkansas, Texarkana Division
REPORT AND RECOMMENDATION
JAMES R. MARSCHEWSKI, Magistrate Judge.
Before the undersigned for report and recommendation is the Defendant's Motion to Dismiss (ECF No. 11) filed June 24, 2014, The Plaintiff's Motion for Entry of Default Judgment (ECF No. 13) filed June 27, 2014, Plaintiff's Motion for Appointment of Counsel (ECF No. 18) filed August 18, 2014, and the Plaintiff's Motion to Amend (ECF No. 20) filed September 4, 2014).
The Background of the current case is convoluted in the extreme but the Defendant's Brief accurately sets forth the background of the Plaintiff's case.
The Complaint alleges that, in April of 2003, Cooper was convicted of aggravated robbery and attempted aggravated robbery in connection with incidents at a Texarkana, Arkansas, convenience store and sentenced to sixty years in the Arkansas Department of Correction. ECF No. 2, ¶¶ 3, 6. The Arkansas Court of Appeals reversed the conviction and remanded the case because the trial court erroneously admitted into evidence certain irrelevant and prejudicial portions of a witness's taped statement. Cooper v. State, No. CACR 03-542, 2004 WL 792711 (Apr. 14, 2004).
On retrial in April 2005, Cooper was convicted again and received consecutive sentences of three hundred months' imprisonment for the aggravated robbery and sixty months for the attempted robbery. Id., ¶ 6. At his retrial, Cooper for the first time sought court-ordered DNA testing on the physical evidence at issue in this case. Cooper v. State, No. CACR 05-818, 2006 WL 477634, at *3 (Mar. 1, 2006). The trial court denied the motion for scientific testing because the exhibits had been handled extensively during the first trial and stored afterwards in the court reporter's non-sterile environment and, therefore, any test results would be unreliable. Id. at *4.
Cooper appealed his convictions and argued that the trial court's refusal to grant his motion for DNA testing violated his due-process rights, but the Arkansas Court of Appeals affirmed. Id. at *3, *7. The appellate court held that the state statutes upon which Cooper partially relied applied in habeas corpus proceedings, not on direct appeal, and that the trial court thus lacked authority under both the federal and state constitutions to order the State of Arkansas to pay for the DNA testing. Id. at *4. The court found it significant that Cooper did not dispute the trial court's finding that the evidence he sought to have tested was contaminated. Id. at *5. The court of appeals held that the probative value of the DNA testing Cooper sought was "extremely low" and that Cooper's "undeveloped assertions" otherwise did not require expert assistance under the Due Process Clause. Id.
Cooper then filed in the trial court a pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1, which was denied. The Arkansas Supreme Court dismissed Cooper's appeal from that order because he did not timely file the trial court record in the appellate court. Cooper v. State, No. CR 06-1422, 2007 WL 117422 (Ark. Jan. 18, 2007).
Cooper next filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 on March 8, 2007 in the Eastern District of Arkansas. Cooper v. Norris, No. 5:07CV00046 JMM, 2008 WL 2115218 (E.D. Ark. May 19, 2008). One of the asserted grounds for relief was that the trial court violated Cooper's due process rights in his second trial by denying scientific testing of the crime scene evidence. Id. at 2. The district court explained that, on a petition for habeas relief, the issue was whether the state court's denial of Cooper's claim for DNA testing was contrary to, or an unreasonable application of, United States Supreme Court precedent. Id. at *5 (citing 28 U.S.C. § 2254(d)). The district court held that the Arkansas appellate court's decision was not unreasonable and dismissed the habeas petition regarding the DNA testing with prejudice. Id. at *1, *5, *12 (discussing Arizona v. Youngblood, 488 U.S. 51, 58 (1988) & Illinois v. Fisher, 540 U.S. 544, 545 (2004)).
Three years after filing his federal habeas petition, in 2010, Cooper filed in the Arkansas state trial court a motion for DNA and forensics testing under Ark. Code Ann. § 16-112-201 et seq. Cooper v. State, 2012 Ark. 123, at *1. Cooper sought testing of the crime scene evidence admitted in conjunction with his 2005 convictions and requested that the court appoint an expert or the Arkansas Crime Lab to perform the DNA and fingerprint tests on the evidence. Id . The trial court denied the motion, finding that the files and records of the proceedings had conclusively established that Cooper was not entitled to relief under Ark. Code Ann. § 16-112-201 et seq., that Cooper's remedy had been available to him on direct appeal, and that the petition was untimely under the statute. Id . On appeal, the Arkansas Supreme Court agreed that Cooper's petition was untimely and, therefore, neither the trial court nor the appellate court had jurisdiction to address the merits of Cooper's request for postconviction DNA testing. The state supreme court also noted that Cooper failed to develop his due process arguments, which precluded appellate review. The Arkansas Supreme Court dismissed the appeal on March 15, 2012. Id. at *1-2.
Meanwhile, in 2011, Cooper filed in the state trial court a pro se "petition for writ of certiorari" in which he raised a number of claims challenging the judgment and commitment order entered in his criminal case. He also again requested scientific testing of crime scene items admitted into evidence by the state during his second trial, but the trial court denied relief. Cooper v. State, 2014 Ark. 243, at *2. On appeal, the Supreme Court of Arkansas affirmed because Cooper's claims, including his request for scientific testing of evidence, were barred by the law-of-the-case doctrine. Cooper's request for DNA testing was barred because it was "addressed by this court in appellant's numerous requests for postconviction relief." Id. at *3-4 (citing Cooper v. State, 2013 Ark. 180; Cooper, 2012 Ark. 123; Cooper v. State, 2010 Ark. 471).
In 2012, during the pendency of Cooper's appeal of the dismissal of his state-court writ petition, Cooper filed two more motions in the trial court seeking postconviction DNA and forensics testing under Ark. Code Ann. §§ 16-112-201 et seq. The trial court denied the motions, finding that they constituted a successive petition for relief under the state act and that the court could summarily deny the motions on that basis. The Supreme Court of Arkansas affirmed. Cooper, 2013 Ark. 180.
As noted above, Cooper filed the instant Complaint pursuant to 42 U.S.C. § 1983 on April 4, 2014. Once again, Cooper seeks DNA testing of the crime scene evidence (mask, coat, sock, and ornament: ECF No. 1, p. 4) admitted in his second trial under Ark. Code Ann. §§ 16-112-201 et seq. (ECF No. 2, p. 4). Cooper alleges that DNA testing would significantly advance his postconviction assertion of actual innocence. Id . ¶ 9. He alleges that the state court ...