Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carter v. Kelley

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

March 7, 2016

BRANDON CARTER, Petitioner
v.
WENDY KELLEY, Director of the Arkansas Department of Correction, Respondent.

          FINDINGS AND RECOMMENDATION

          PATRICIA S. HARRIS, Magistrate Judge.

         INSTRUCTIONS

         The following proposed Findings and Recommendation have been sent to United States District Judge James M. Moody, Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         FINDINGS AND RECOMMENDATION

         I. STATE PROCEEDINGS.

         On March 24, 2006, sixteen-year-old petitioner Brandon Carter ("Carter") and two accomplices entered a laundromat owned by an elderly couple. The testimony at trial reflects that the following occurred after Carter and his accomplices entered the laundromat:

... After loitering for a few minutes, [Carter] shot the aged Travis Young several times in the back and stomach, inflicting grievous injury that Mr. Young miraculously survived. His wife, Inez Young, scrambled to get a weapon upon seeing her husband shot and was herself shot by [Carter]. The robbers took Mr. Young's cell phone and at least $500 from the laundromat's cash drawer and money bowl. Mrs. Young was a co-owner of the laundromat, and the money taken belonged to both Mr. and Mrs. Young.

         See Carter v. State, 2010 Ark. 611, ___ S.W.3d ____, 2010 WL 3700813, 1 (Ark.Ct.App. 2010).

         Carter was tried and convicted of one count of first degree battery for shooting Travis Young and two counts of aggravated robbery for robbing Travis Young and Inez Young. Carter was sentenced to a total of one hundred years in the custody of respondent Wendy Kelley ("Kelley").

         Carter thereafter filed a post-trial motion for a reduction or modification of his sentence. In the motion, he asked that he be re-sentenced because "[t]here were not two separate robberies;" instead, "only one robbery was committed in which there were two victims." See Document 10, Exhibit A-1 at CM/ECF 63. The state trial court denied the motion, and Carter did not appeal the denial of his motion.

         Carter eventually prosecuted a belated appeal of his conviction.[1] He maintained on appeal that the evidence was insufficient to support his conviction for the aggravated robbery of Inez Young. The state Court of Appeals rejected the claim on a procedural ground, noting that Carter's attorney failed to "renew his directed-verdict motion at the close of the case for the defense..." See Carter v. State, 2010 WL 3700813, 1.

         Carter then filed a state trial court petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37. In the petition, he challenged the sufficiency of the evidence to support his conviction of two counts of aggravated robbery and also challenged his trial attorney's representation. The petition was denied, and Carter appealed. The Arkansas Supreme Court found no reversible error and affirmed the denial of his petition. See Carter v. State, 2015 Ark. 166, 460 S.W.3d 781 (2015).

         II. FEDERAL PROCEEDINGS.

         Carter commenced the case at bar by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 and joining Kelley. In the petition, Carter challenged his convictions and advanced the following claims:

         1) Carter's trial attorney was ineffective because counsel failed to object to the filing of the second amended information two days before trial;

         2) trial counsel was ineffective because he failed to move for a continuance after the second amended information was filed;

         3) trial counsel was ineffective because he failed to challenge the filing of the second amended information on the ground that it violated Carter's protection against double jeopardy;

         4) trial counsel was ineffective because he failed to move to dismiss the second amended information on the ground that the delay in filing it violated Carter's right to due process;

         5) trial counsel was ineffective because he failed to move to dismiss the second amended information on the ground that it did not contain the clause "against the peace and dignity of the state of Arkansas;" and

         6) Carter's right of access to the courts was violated when officials with the Arkansas Department of Correction ("ADC") confiscated his legal papers during the pendency of the post-conviction proceeding, thereby preventing him from raising several new claims in his petition for post-conviction relief.

         Kelley filed a response to the petition. In the response, she maintained that the state courts of Arkansas adjudicated several of Carter's claims on the merits, and the adjudication should be accorded deference. With regard to his other claims, she maintained that they are procedurally barred from federal court review.

         Carter filed a voluminous reply to Kelley's response. In short, he maintained that the adjudication made of his claims by the state courts of Arkansas was entitled to no deference. With respect to his claims not adjudicated by the state courts of Arkansas, he maintained that the claims are not procedurally barred from federal court review.

         III. CARTER'S FIRST, SECOND, AND FOURTH CLAIMS.

         "Carter was initially charged with one count of aggravated robbery against Travis Young." See Carter v. State, 460 S.W.3d at 787. The information was later amended to also charge Carter with first degree battery against Travis Young. "Two days before trial, the State filed a second amended information charging [Carter] with an additional count of aggravated robbery against [Inez] Young." See Id.

         Carter's first, second, and fourth claims pertain to the same issue: the filing of the second amended information. He maintains that his trial attorney was ineffective because counsel failed to object to, seek a continuance following the filing of, or move to dismiss the second amended information. It is Carter's position that counsel should have undertaken one of those legal maneuvers because the filing of the information caught Carter by surprise and allowed the State of Arkansas to gain a tactical advantage in that he was prevented from preparing an adequate defense. He specifically maintains that the last minute filing prevented counsel from interviewing Inez Young.

         Carter's claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984), which requires a two-part showing. First, he must show that counsel's performance fell below an objective standard of reasonableness, i.e., counsel's error was so serious he was not functioning as the "counsel" guaranteed by the Sixth Amendment. See White v. Dingle, 757 F.3d 750 (8th Cir. 2014). Second, Carter must show prejudice, i.e., a reasonable probability that, but for counsel's error, the result of the trial would have been different. See Id.

         Carter's claims of ineffective assistance of counsel are also governed by 28 U.S.C. 2254(d), which requires its own two-part showing. It first requires an inquiry into whether the state court's adjudication of the claims resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. 28 U.S.C. 2254(d) also requires an inquiry into whether the state court's adjudication of the claims resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. Taken together, Strickland v. Washington and 28 U.S.C. 2254(d) establish a "doubly deferential ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.