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McCullough v. Kelley

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

February 25, 2016

ALVIN T. McCULLOUGH ADC #131910, Petitioner,
v.
WENDY KELLEY, Director, Arkansas Department of Correction, Respondent.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

JEROME T. KEARNEY, Magistrate Judge.

INSTRUCTIONS

The following recommended disposition has been sent to United States District Court Judge James M. Moody, 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 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 United States District Judge, you must, at the same time that you file your written objections, include a "Statement of Necessity" that sets forth the following:

1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge.
3. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge.

From this submission, the United States 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:

Disposition

BEFORE THE COURT is the Petition for Writ of Habeas Corpus filed by Alvin McCullough. (Doc. No. 2) After reviewing the parties' briefing and the available evidence, the Court finds that Petitioner's claims should be dismissed.

Background

On February 6, 2008, a Washington County, Arkansas jury found Petitioner guilty of kidnaping, residential burglary, and rape. Petitioner received a habitual offender sentence and is serving life imprisonment without parole in the Arkansas Department of Correction (ADC). On direct appeal of his conviction, Petitioner's only argument was whether the circuit court erred by allowing the admission of evidence of his prior bad acts under Arkansas Rules of Evidence 404(b) and 403. On March 12, 2009, the Arkansas Supreme Court affirmed Petitioner's conviction on state evidentiary grounds. McCullough v. State, 2009 Ark. 134, 298 S.W.3d 452 (2009).

On November 8, 2010, Petitioner filed a state habeas petition in Lincoln County Circuit Court. In it, he asserted that (1) the trial court erred by allowing evidence of other crimes in violation of Arkansas Rules of Evidence 404(b), and (2) trial counsel was ineffective for (a) never discussing any possible defenses, (b) not challenging the sufficiency of the evidence, and (c) not conducting a prompt investigation of the circumstances of the case and causing a conflict of interest. (Doc. No. 10-7) The Lincoln County ...


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