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McPeak v. Sharp

United States District Court, W.D. Arkansas, Hot Springs Division

September 7, 2016

DOMINIC ANTHONY MCPEAK PETITIONER
v.
SHEILA SHARP, Director, Arkansas Department of Community Corrections, and CRYSTAL WILLIAMS, Probation Officer for Arkansas Department of Community Corrections RESPONDENT

          ORDER

          SUSAN O. HICKEY, UNITED STATES DISTRICT JUDGE

         Before 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.

         BACKGROUND

         On 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.

         Petitioner 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 denied review.

         On 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).

         On 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).

         Petitioner made the following timely objections to the Report and Recommendation:

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 ...

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