United States District Court, E.D. Arkansas, Pine Bluff Division
FINDINGS AND RECOMMENDATION
PATRICIA S. HARRIS, Magistrate Judge.
The following proposed Findings and Recommendation have been sent to United States District Judge Brian S. Miller. 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. Arkansas State Police Trooper Stephen Briggs ("Briggs") was inside a Valero convenience store in Little Rock, Arkansas, purchasing a drink when he happened to overhear a man on a cell phone say that the man had lost $3, 200.00. The Arkansas Court of Appeals found that the following then occurred:
... The man [unidentified at that time] also asked, "what was he supposed to do, go back and get his dope." Briggs bought his drink and went back to his vehicle, and based on what he had overheard, he decided to watch the man, who subsequently went outside and got into a white Cadillac DeVille.
At some point thereafter, a maroon Nissan pickup truck pulled up and parked on the passenger side of the Cadillac. [Footnote omitted]. The driver of the Nissan got out and met with the man in the Cadillac. The two men went to the trunk of the Cadillac and leaned down into the vehicle, and Briggs then saw the driver of the Nissan-later identified as Moody-place something in his back left pocket. Both men walked to the driver's side of the Nissan. Trooper Briggs and Officer Matthew Blasingame, who was also on the scene, approached the two men. Blasingame saw, in plain view on the driver's seat of the Nissan, a clear plastic baggie containing two more clear plastic baggies in which there was a white crystallized substance. Blasingame suspected the white substance was methamphetamine. After Blasingame made this observation, Briggs then made contact with both men, advised that he was law enforcement, and told them to get on the ground. Blasingame seized the white substance and turned it over to Briggs.
See Moody v. State, 2014 Ark.App. 618, 446 S.W.3d 652, 653 (2014). Petitioner Alton Scott Moody ("Moody") was subsequently convicted of one count of possession of methamphetamine with intent to deliver and two counts of possession of drug paraphernalia. He was sentenced to the custody of respondent Wendy Kelley ("Kelley").
Moody appealed his conviction. On appeal, he maintained that the state trial court erred when it denied his motion to suppress. He maintained that "the investigating and arresting officers did not have reasonable suspicion... [Moody] was involved in the commission of a felony." See Id. at 654. Moody also alleged that "the officers made a warrantless arrest without probable cause and, because there was no probable cause for his arrest, the resulting search was illegal." See Id . The state Court of Appeals found, though, that reasonable cause existed to believe Moody had committed a felony, and the warrantless arrest was justified. The state Court of Appeals found that the state trial court did not err when it refused to suppress the evidence seized as a result of his arrest.
Moody thereafter filed a state trial court petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37. In the petition, he challenged the state Court of Appeals' adjudication of his Fourth Amendment claim on direct appeal and challenged his attorney's representation at trial and on appeal. The petition was denied when it was determined that the petition did not conform to the length requirements of the Arkansas rules of appellate procedure. See Document 1 at CM/ECF 13-14.
Moody appealed the denial of his petition. He tendered the record, but the appellate court clerk refused to lodge it because Moody's notice of appeal was untimely. Moody filed a motion for rule on the clerk. The Arkansas Supreme Court denied the motion and dismissed his appeal after it found that his notice of appeal was indeed untimely. See Moody v. State, 2015 Ark. 337, ___ S.W.3d ___, 2015 WL 5635281 (2015).
II. FEDERAL PROCEEDINGS. Moody commenced the case at bar by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 and joining Kelley. Liberally construing Moody's pro se petition, he appears to advance the following claims:
1) Moody's Fourth Amendment right was violated when he was arrested and evidence seized without probable cause, and the state Court of Appeals made an erroneous adjudication of those claims on direct appeal;
2) Moody's appellate attorney was ineffective because counsel failed to ask the state Supreme Court to review the state Court of ...