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Hogan v. Kelley

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

July 31, 2015

LAQUINCE T. HOGAN ADC #100540, Petitioner,
v.
WENDY KELLEY, Director, Arkansas Department of Correction, Respondent.

MEMORANDUM OPINION AND ORDER

BETH DEERE, Magistrate Judge.

I. Underlying Facts

On August 5, 2008, Ashdown Police Officer Doyle Couch applied for a warrant to search Petitioner Laquince T. Hogan's home for a "dark colored handgun with a long barrel" that had been used in a homicide four days earlier. Hogan v. State, 2010 Ark.App. 434 at *2. (#9-13 at p. 1) According to the affidavit offered in support of the search warrant application, an anonymous "concerned citizen" observed Mr. Hogan take a handgun from his waistband and hand it to Derrick Robertson, who shot the victim, then handed the gun back to Mr. Hogan.[1] (#9-13 at p. 2)

Officer Couch's affidavit further stated that the concerned citizen's account of the homicide was "consistent with those accounts given by other witnesses." ( Id. ) The affidavit noted that the scene of the homicide was "adjacent to the residence of Laquince T. Hogan, " and that Mr. Hogan had admitted to officers he was "in close proximity to Derrick Robertson when he shot Patricia Norwood." ( Id. )

Based on the affidavit, officers obtained a warrant to search Mr. Hogan's house for "a dark colored hand gun with a long barrel." ( Id. at p. 4) When officers arrived at Mr. Hogan's house to execute the search warrant, he was standing outside, about twenty-five feet from the house. (#9-15 at p. 146)

During the search of the house, officers opened a kitchen cabinet and found a bag of marijuana, a small amount of cocaine, a digital scale, and a credit card. (#9-15 at p. 148) Officers also discovered a Crown Royal bag, which they opened. They found a sizable quantity of both powder and crack cocaine inside the bag. (#9-15 at pp. 8, 11, 150-152; #9-16 at pp. 199-207) The gun was never found. Officers also searched Mr. Hogan at the scene and found $4, 085.00 in his pants pockets. (#9-15 at pp. 156-57; #9-16 at p. 208)

At a pre-trial hearing, Mr. Hogan's lawyer was unfamiliar with the facts surrounding his client's arrest and the execution of the search warrant. He orally moved to suppress the evidence seized, but on the sole ground that Mr. Hogan was illegally arrested and that the search of his home was an unlawful search incident to an arrest. (#9-15 at pp. 48-62)[2] The Court denied the motion. ( Id. at 62)

The crime-lab analysis produced at trial showed that approximately 37 grams of powder cocaine and 29 grams of crack cocaine were seized from the residence. (#9-16 at p. 209) Mr. Hogan was convicted by a Little River County, Arkansas, jury of possession of cocaine with intent to deliver and possession of marijuana. He was sentenced as a habitual offender to 125 years in prison.[3] Hogan v. State, 2010 Ark.App. 434, 1 (2010). The Arkansas Court of Appeals affirmed Mr. Hogan's conviction. Id. at 6.

II. Post-Trial Proceedings

A. Rule 37 Petition

1. Proceeding Before The Trial Court

Mr. Hogan filed a pro se petition with the trial court under Rule 37 of the Arkansas Rules of Criminal Procedure.[4] (#9-17 at pp. 12-21) In the petition, he claimed his trial counsel was ineffective for: (1) failing to file a motion to suppress and object to the evidence presented at trial; (2) failing to object to, or attack, the search warrant affidavit; (3) failing to object to the introduction of unrelated drug sales that the State introduced during the sentencing phase of his trial, in violation of his due process rights; and (4) failing to move for a mistrial in a timely manner. (#9-17 at pp. 14-18)

The Honorable Tom Cooper held a hearing on the Rule 37 petition, at which Mr. Hogan; Michael Booker, Mr. Hogan's trial lawyer; and three other witnesses testified. (#9-17 at pp. 46-86) At the hearing, Mr. Hogan erroneously argued that Mr. Booker had never made even an oral motion to suppress evidence, but he also argued that Mr. Booker should have filed a written motion. (#9-17 at pp. 52-53, 56-57, 71, 74-75) Mr. Booker admitted he did not file a written motion to suppress, but testified that he had orally moved to suppress evidence obtained from the search. ( Id. at pp. 52-53, 56-58)

Judge Cooper denied the petition. (#9-17 at pp. 44-45) In his order, Judge Cooper found: Mr. Hogan's testimony was not credible; his sentence was enhanced based on his prior convictions; counsel sought to suppress evidence from the search warrant at a pre-trial hearing; and counsel had moved for a mistrial at trial. (#9-17 at pp. 44-45)

2. Proceedings on Appeal

Mr. Hogan appealed the denial of his Rule 37 petition to the Arkansas Supreme Court. Hogan v. State, 2013 Ark. 223, 1 (2013). Mr. Hogan raised seven points on appeal and asserted error in the trial court's denial of his ineffective-assistance-of-counsel claims in six of those points. Id. The Court applied the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) and affirmed the trial court's denial of relief. Hogan, 2013 Ark at 4-7.

Mr. Hogan's first point on appeal was that his counsel failed to investigate and prepare for trial. Id. at 2. As part of that point, Mr. Hogan argued his counsel erred by failing to file a motion to suppress evidence obtained in the search of his home because the search exceeded the scope of the warrant. Id. at 3. More particularly, Mr. Hogan argued that the search warrant permitted officers to search for a weapon, but that the officers exceeded the scope of the warrant by searching the closed Crown Royal bag. (#9-9 at pp. 34-35) He also argued that the items seized from inside the bag did not fall within the plain-view and plain-feel exceptions to the warrant requirement and that, consequently, the evidence should have been excluded. (#9-9 at pp. 35-45) Hogan, 2013 Ark. at 3.

The Arkansas Supreme Court found, that while Mr. Hogan had argued before the trial court that his trial counsel erred by failing to file a written motion to suppress and by failing to challenge the search warrant affidavit, he had failed to raise a claim that the search of the Crown Royal bag exceeded the scope of the warrant. And because the trial court did not address the scope-of-the-warrant claim, Mr. Hogan was barred from raising the argument on appeal. Id. at *4. The Court wrote:

Regardless of the merit of appellant's asserted new potential bases to challenge the search, the trial court did not err in finding that, concerning the claim that was presented in appellant's petition and at the postconviction-relief hearing, appellant failed to carry his burden to demonstrate prejudice. We affirm on this first point because appellant does not demonstrate clear error in the trial court's ruling.

Id. at *4. The Court found that Mr. Hogan had failed to obtain rulings from the trial court on four of his other ineffective-assistance claims and affirmed the trial court's conclusion that Mr. Hogan was not prejudiced by counsel's failure to move for a mistrial. Id. at *4-7.

B. Petition for Writ of Habeas Corpus

In this petition, Mr. Hogan claims that his trial counsel was constitutionally ineffective:

(1) for failing to challenge the absence of an affidavit or sworn testimony supporting the application ...

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