United States District Court, W.D. Arkansas, Hot Springs Division
O. HICKEY, UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation filed February 4,
2015, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 21). Judge Bryant recommends that Petitioner's writ
of habeas corpus pursuant to 28 U.S.C. §2254
(ECF No. 1) be denied with prejudice. Petitioner has filed
timely objections to the Report and Recommendation. (ECF No.
22). The Court finds the matter ripe for consideration.
March 31, 2011, Petitioner was tried and convicted of two
counts of felony aggravated assault and one count of
misdemeanor fleeing in the Circuit Court of Clark County,
Arkansas. Petitioner was sentenced to 90 days'
imprisonment for each count, with the sentences to be served
concurrently, as well as sixty months' probation with the
Arkansas Department of Community Corrections.
later appealed the convictions to the Arkansas Court of
Appeals and raised two main arguments: (1) the trial court
erred by denying his motion to suppress evidence; and (2) the
trial court erred in denying his motion for a directed
verdict based on a lack of evidence to sustain the aggravated
assault convictions. The Arkansas Court of Appeals affirmed
Petitioner's convictions and held that the trial court
did not err in denying his motion to suppress. In addition,
the Court of Appeals held that Petitioner's trial counsel
failed to preserve the sufficiency of the evidence issue for
appeal. See McPeak v. Arkansas, 406 S.W.3d 420, 433
(Ark. App. 2012). On May 10, 2012, the Arkansas Supreme Court
August 8, 2013, Petitioner filed the instant Petition for a
writ of habeas corpus. (ECF No. 1). The Petition set
forth the following two claims for relief:
1. The Court should reverse his conviction because “the
State did not produce sufficient evidence at his trial to
sustain his convictions for aggravated assault” (ECF
No. 1, pp. 15-16); and
2. The Court should find that his trial counsel's
“failure to renew the motion to dismiss at the
conclusion of the State's rebuttal case constituted
ineffective assistance of counsel in that the failure was
deficient and the deficient performance prejudiced
[Petitioner] on appeal” (ECF No. 1, p. 16).
February 4, 2015, Judge Bryant issued a Report and
Recommendation that the Petition be denied because:
1. The Petitioner “clearly procedurally
defaulted” on his claim that there was insufficient
evidence to support his conviction for aggravated
assault” when his trial counsel failed to renew a
motion to dismiss at the close of all the evidence (ECF No.
21, p. 4); and
2. “[E]ven [if] trial counsel properly preserved the
claim of insufficient evidence, the Arkansas appellate courts
would have looked at the evidence presented at trial and
determined there was ‘substantial evidence' to
support the conviction. Accordingly, there was no prejudice
to [Petitioner] because of counsel's failure to preserve
the claim of insufficient evidence for appeal” (ECF No.
21, p. 9).
made the following timely objections to the Report and
1. “The procedural default doctrine does not apply in
this case because the procedural rule on which the State
relies to establish a default is inadequate and violates the
Equal Protection Clause” (ECF No. 22, p. 2); and
2. “Even if the procedural default rule on which the
State relies to establish a default is adequate,
[Petitioner's] default is excusable because of his trial
counsel's ineffectiveness in preserving the sufficiency
of the ...