United States District Court, E.D. Arkansas, Pine Bluff Division
FINDINGS AND RECOMMENDATION
PATRICIA S. HARRIS, Magistrate Judge.
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
STATE PROCEEDINGS. The record reflects that in September of
2008, counterfeit checks were passed at convenient stores in
Pike County, Arkansas. See Document 23, Exhibit A at CM/ECF
15. The checks were drawn on a general fund maintained by the
City of Nashville, Arkansas. See Id . Local law
enforcement authorities conducted an investigation into the
passing of the checks, and they eventually identified
petitioner Matthew Williams, Jr., ("Williams") as
one of the individuals passing one or more of the checks. See
November of 2008, Williams was charged in Pike County,
Arkansas, Circuit Court with forgery in the first degree in
violation of Ark. Code Ann. 5-37-201. See Document 23,
Exhibit A at CM/ECF 13-14. Williams initially retained an
attorney, but counsel withdrew when he was not paid for his
services. See Id. at CM/ECF 8, 19, 32-34, 115-117.
When Williams was unable to retain another attorney, the
state trial court judge appointed LaJeana Jones
("Jones") to represent Williams. See Id.
at CM/ECF 119-121. Jones represented Williams until the day
of the trial, at which time Williams discharged Jones, and
Williams began representing himself. See Id. at
CM/ECF 171-183. The state trial court judge permitted
Williams to represent himself only after ensuring that he
knew the consequences of choosing to proceed without counsel.
See Id . The state trial court judge did, though,
appoint Jones to serve as stand-by counsel for Williams. See
Id. at CM/ECF 183.
was tried in December of 2012. See Document 23, Exhibit A at
CM/ECF 10. While the jury was deliberating his guilt, he
absconded. See Id. at CM/ECF 371-373. After the jury
convicted Williams of forgery in the first degree, the state
trial court judge re-appointed Jones to represent Williams
during the punishment phase of the trial. See Id. at
CM/ECF 373. The jury heard evidence relevant to Williams'
punishment, including evidence that he had a number of prior
felony convictions. See Id. at CM/ECF 376-379. The
jury sentenced him as an habitual offender to a term of forty
years in the custody of respondent Wendy Kelley
("Kelley"). See Id. at CM/ECF
385-387. The state trial court judge did not
impose sentence at that time but instead waited until
Williams was apprehended. See Id. at CM/ECF 387-388.
Williams was eventually apprehended and appeared before the
state trial court judge in April of 2013 for sentencing. See
Id. at CM/ECF 391-398. The state trial court judge
imposed the sentence recommended by the jury, and Williams
was placed in Kelley's custody. See Id.
appealed his conviction. During the course of the appeal,
Jones was relieved as Williams' attorney of record, and
Jeff Weber ("Weber") was appointed to represent
Williams. The Arkansas Court of Appeals found no reversible
error and affirmed Williams' conviction. See Williams
v. State, 2014 Ark.App. 454, ___ S.W.3d ___, 2014 WL
then filed a state trial court petition for post-conviction
relief pursuant to Arkansas Rule of Criminal Procedure 37
("Rule 37 petition"). The petition was denied, see
Document 23, Exhibit D at CM/ECF 37-40, and he appealed. The
Arkansas Supreme Court found no grounds for disturbing
Williams' conviction, and the court affirmed the denial
of his petition. See Williams v. State, 2015 Ark.
466, 476 S.W.3d 800 (2015).
FEDERAL PROCEEDINGS. Williams began this case by filing a
petition for writ of habeas corpus pursuant to 28 U.S.C.
2254. In the petition, he raised the following claims: 1)
Jones failed to challenge an erroneous jury instruction, 2)
Jones failed to interview any witnesses, 3) Jones failed to
challenge the admission of certified copies of the
counterfeit checks, 4) Weber failed to challenge the
sufficiency of the evidence, and 5) Weber failed to challenge
the admission of certified copies of the
checks. Williams later amended his petition
and raised the following claims: A) Jones failed to
communicate the terms of a plea bargain, B) Williams was
denied counsel at trial, C) he was denied counsel during the
Rule 37 hearing, and D) he was denied a fair and impartial
filed a lengthy response to the petition. In the response,
she maintained that the petition should be dismissed with
prejudice because the claims contained in the petition were
reasonably adjudicated by the state courts of Arkansas, are
procedurally barred from federal court review, are without
merit, or are otherwise unavailing.
filed a reply to the response. Williams 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 but have merit.
INEFFECTIVE OF COUNSEL. Jones represented Williams up to the
day of trial. Williams represented himself at trial, but
Jones was re-appointed to represent Williams during the
punishment phase. Weber was then appointed to represent
Williams on direct appeal. As Williams' first six claims,
he challenges the representation they afforded him.
Williams' six claims were considered by the Arkansas
Supreme Court. To the extent they were, they are governed by
28 U.S.C. 2254(d), which requires a two-part inquiry. It
requires an inquiry into whether the court's adjudication
of the claim resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
federal law; and whether the adjudication resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented.
Williams' six claims are governed by Strickland v.
Washington, 466 U.S. 668 (1984), which requires its own
two-part showing. He must show that counsel's performance
fell below an objective standard of reasonableness, and he
must show prejudice, i.e., a reasonable probability that, but
for counsel's errors, the result of the trial would have
been different. See White v. Dingle, 757 F.3d 750
(8th Cir. 2014). Taken together with 28 U.S.C. 2254(d),
Strickland v. Washington establishes a doubly
deferential standard of review. See Williams v.
Roper, 695 F.3d 825 (8th Cir. 2012).
Jones' failure to challenge an erroneous jury
instruction. At the close of the evidence, the jurors were
read an instruction allegedly conforming to Arkansas Model
Jury Instruction (Criminal) ("AMCI") 3702. The
instruction provided, in part, that "the written
instrument so drawn, made, completed, altered, counterfeited,
possessed, or uttered was a check, an instrument issued or
appears to be issued by a government or government
entity." See Document 23, Exhibit A at CM/ECF 66, 356.
AMCI 3702, though, does not contain the phrase "appears
to be issued." Williams maintains that Jones erred when
she failed to challenge the instruction on that ground.
raised his claim in his Rule 37 petition. The state Supreme
Court rejected the claim, finding the following:
Williams first argues that the trial court erred by not
granting relief on his claim that his pretrial counsel [i.e.,
Jones] was ineffective for not contesting an erroneous jury
instruction. He contends counsel should have objected on the
basis that the jury instruction defining the offense of
forgery did not mirror the exact language in the forgery
statute in that the instruction stated that the check was a
written instrument that was issued or "appears to be
issued" by the government or a government entity, but
the statute does not contain the words "appears to be
While Williams is correct that the forgery statute... does
not contain the words in question, we cannot say that the
trial court erred in denying postconviction relief on the
issue under the Strickland standard. First, counsel testified
at the Rule 37.1 hearing that she attempted to review the
jury instructions with Williams, but he informed her that he
could read and did not need her help. At trial, when Williams
was representing himself, he did not object when the jury
instructions were read to the jury. The right of
self-representation carries the responsibility for one's
own mistakes, and a defendant who elects to represent himself
cannot thereafter complain that the quality of his
self-representation amounted to a denial of effective
assistance of counsel....
Moreover, even if pretrial counsel failed to point out to
Williams the difference in the wording between the statute
and the jury instruction or if counsel, acting as stand-by
counsel, could have suggested that Williams object to the
jury instruction, Williams did not show that the difference
in the wording was sufficient to change the outcome of the
trial. Without a showing of a reasonable probability that the
fact-finder's decision would have been different absent
an error by counsel, Williams did not establish that he was
prejudiced by any error by his pretrial counsel....
Williams v. State, 476 S.W.3d at 804.
state Supreme Court's adjudication of Williams' claim
did not result in a decision that was contrary to, or
involved an unreasonable application of, clearly established
federal law. The court applied clearly established federal
law as announced in Strickland v. Washington, and