United States District Court, E.D. Arkansas, Pine Bluff Division
Thomas, III, Plaintiff, Pro Se.
Kelley, Defendant, represented by Rebecca Bailey Kane,
Arkansas Attorney General's Office.
THOMAS RAY, Magistrate Judge.
following Recommended Disposition
("Recommendation") has been sent to United States
District Judge James 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.
before the Court is a pro se Â§ 2254 Petition for a
Writ of Habeas Corpus, along with a supporting Brief, filed
by Petitioner, Eugene Thomas, III ("Thomas"), a
prisoner in the Arkansas Department of Correction. Doc. 2
& 3. Respondent has filed a Response to the Petition,
Doc. 9, and Thomas has filed a Reply, Doc.
11. Thus, the issues are fully joined and ripe for
addressing the merits of this habeas action, the Court will
review the relevant procedural history of Thomas's
underlying state court conviction.
April 2011, a jury in Ashley County, Arkansas convicted
Thomas of aggravated robbery and commercial burglary, and
sentenced him to twenty years. Doc. 9-2 at 61-62.
appealed his conviction to the Arkansas Court of Appeals
where he argued, through counsel,  that the trial court
erred by: (1) refusing to give a jury instruction on the
lesser-included offense of attempt to commit aggravated
robbery; (2) admitting evidence during sentencing of his
participation in a prior robbery; and (3) denying his motion
for mistrial based on the prosecutor's remark during
September 12, 2012, the Arkansas Court of Appeals affirmed
both convictions. Thomas v. State, 2012 Ark.App.
466, 422 S.W.3d 217, 218 (" Thomas I ").
November 30, 2012, Thomas filed a pro se petition
for post-conviction relief under Ark. R. Crim. P. 37. Thomas
raised numerous ineffective assistance of counsel claims
arising from his attorney's actions and inactions at
trial and on direct appeal. These claims included his
attorney: (1) failing to formulate a trial strategy; (2)
failing to adequately voir dire the jury; (3) making
statements during opening and closing that stripped Thomas of
the presumption of innocence in violation of his 5th
Amendment rights; (4) failing to present arguments, on
appeal, which adequately explained how the trial court had
erred in refusing to grant a mistrial due to the
prosecutor's statements during closing argument; (5)
failing to obtain a jury instruction on the "corpus
delicti rule"; (6) failing to appeal the trial
court's denial of him motion for directed verdict based
on the State's failure to prove his intent to commit
theft, an essential element of aggravated robbery; and (7)
failing to argue, during closing argument, that the State had
failed to prove Thomas's intent. Rule 37 Tr. at
March 13, 2013, the Chicot County Circuit Court entered an
Order denying Rule 37 relief. Rule 37 Tr. at 26-31.
In this Order, the trial court noted that:
The evidence of guilty [sic] in this case is overwhelming.
Not only did petitioner give a full confession to the police
but there were two witnesses who testified to his action and
activities while in the store.
Id . at 30.
appealed the denial of Rule 37 relief to the Arkansas Supreme
Court, which affirmed. Thomas v. State ,
Ark. Sup.Ct. No. CR-13-842 (June 19, 2014) (per curiam) (
Doc. 9-9 ) (" Thomas II
habeas Petition, Thomas makes the following claims: (1) the
evidence at trial was insufficient to support his
convictions; (2) his appointed counsel was
ineffective, at trial and on appeal, regarding the criminal
intent and the "corpus delicti rule"; (3) his
appointed counsel was ineffective for conceding his guilt at
trial and for a lack of strategy; (4) the prosecution
committed misconduct during the sentencing phase and his
appointed counsel was ineffective in appealing this
issue; and (5) other cumulative errors denied
him his Sixth Amendment right to a fair and impartial
trial. Doc. 2.
argues that Thomas's ineffective assistance claims, which
were resolved adversely to him in state court, fail on the
merits and that his insufficiency of the evidence claim is
procedurally defaulted. Doc. 9.
reasons discussed below, this Court recommends that
Thomas's habeas Petition be denied, and the case
dismissed, with prejudice.
Analysis of Thomas's Habeas Claims
Insufficiency of Evidence Claim
argues that the evidence was insufficient to support his
convictions for aggravated robbery and commercial
burglary. See e.g., Doc. 2 at 5-7;
Doc. 3 at 11-23; Doc. 11 at 12. As part of
this argument, Thomas also contends that his attorney was
ineffective for failing to appeal the trial court's
denial of the directed verdict motions, based on the
insufficiency of the evidence proving his "intent to
commit theft, " one of the statutory requirements of the
offense of aggravated robbery. See Ark. Code Ann. Â§Â§
5-12-103 and 5-12-102. See Meadows v.
State, 2012 Ark. 57, at 5, 386 S.W.3d 470, 474 ("we
treat a motion for directed verdict as a challenge to the
sufficiency of the evidence").
challenging the sufficiency of the trial evidence "face
a high bar in federal habeas proceedings." Coleman
v. Johnson, 132 S.Ct. 2060, 2062 (2012). "[I]t is
the responsibility of the jury - not the [reviewing] court -
to decide what conclusions should be drawn from evidence
admitted at trial." Id. Evidence is sufficient
to support a conviction whenever, "after viewing the
evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt." Id. at 2064 (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). Circumstantial
evidence is "just as probative as any other type of
evidence." Garrison v. Burt, 637 F.3d 849, 855
(8th Cir.2011); see Holland v. United
States, 348 U.S. 121, 140 (1954) (circumstantial
evidence is "intrinsically no different from testimonial
evidence, " and "[i]f the jury is convinced beyond
a reasonable doubt, we can require no more").
the Arkansas Supreme Court refused to address the sufficiency
of the evidence in rejecting Thomas's Rule 37 petition,
it is clear the claim fails on the merits because the
evidence at trial was constitutionally sufficient to support
the jury's finding of guilt. The Arkansas Supreme Court
summarized the facts of the case as follows:
At trial, Whitney Bridges and Nicky Waltman, employees of a
Dollar General Store, testified that a man, wearing a
black-and-white shirt and a red hat, came into the store
shortly before closing time and walked to the back of the
store toward a storeroom that was closed to the public. A
second man was seated in a van outside. Waltman testified
that she and Bridges walked through the store before locking
the door but did not see the man. Bridges testified that
after the door was locked, the man appeared from the back of
the store with a black bandana over his face and a
silver-and-black gun in his hand. The man and Bridges ran
toward the front of the store where both fell down while
Waltman unlocked the door and fled. The man pointed the gun
at Bridges, and Bridges testified that he shouted at Waltman
to stop. Waltman, who testified that the man yelled for her
to stop or he would shoot, continued to run and called 911.
After Waltman ran away, the man left the store, and Waltman
heard the screech of tires as the van drove away. There was
video surveillance equipment in operation at the store that
recorded the incident, and a tape taken from those cameras
was shown to the jury.
A police officer testified that, in the course of the
investigation into the crime, he came upon a van that matched
the description of the one seen at the store. Appellant
[Thomas] was in the van with his brother, Dewayne Spearman. A
search of Spearman's house in Mississippi produced a red
hat, a black bandana, and a silver-and-black gun. A
black-and-white shirt was seized in a search of
appellant's mother's house. When informed of the
items seized in the searches, appellant admitted in a
recorded interview with police that it was his idea to rob
the store and that he was the man who went inside with the
gun while Spearman remained in the van. Appellant said in the
interview that he became nervous and left without taking
anything from the store.
It was appellant's defense that he made a mistake but
admitted it promptly when apprehended, showed remorse for the
crimes, willingly returned to Arkansas from Mississippi when
arrested, and that the State did not prove all the elements
of the offenses for which he was charged. After the State
rested its case, counsel was allowed to question appellant
out of the hearing of the jury and on the record as to
whether he was in agreement with the strategy to demonstrate
that his conduct did not constitute commercial burglary or
aggravated robbery and whether he wished to testify in the
guilt phase. Appellant said at the time that he did not agree
with the State's position that he had aimed the gun at
the woman lying on the floor with intent to use force but
that he did not wish to testify. Counsel asked for a directed
verdict as to both charges for failure to prove the elements
of the offenses and also requested a jury instruction on the
lesser-included offense of attempted aggravated robbery.
Thomas II, supra at 4-6.
sufficiency of the evidence challenge can only be considered
in a federal habeas action if it rises to the level of
violating the defendant's due process rights under the
Fourteenth Amendment. The legal standard for analyzing such a
due process claim is "whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979). After
carefully reviewing the record, this Court concludes that a
rational jury could have found Thomas guilty of the charged
offenses, especially since he confessed to police that: (1)
"it was his idea to rob the store"; and (2) he
entered the store with a gun. Trial T. at 164-166. Given
those admissions, it is difficult to fathom how any rational
jury could not have found Thomas guilty.
he ultimately left the store, without actually taking any
money or merchandise, Thomas argues that he cannot be deemed
to have possessed the "intent to commit theft."
This argument is misguided and finds no support in the law.
After entering the store armed with a gun, Thomas may have
changed his mind about following through with the crime or
simply panicked and left the store without taking anything.
These facts might be relevant at the sentencing stage but
they in no way mitigate his "intent to commit theft,
" as proven by his admission to police that, when he
entered the store with a gun, he planned to rob it.
as explained more fully below, Thomas's challenge to the
sufficiency of the evidence is nothing more than a challenge
to Arkansas's interpretation of the criminal intent
requirement for aggravated robbery and the corpus delicti
doctrine. Thomas may not transform a state law issue into a
federal due process issue simply by asserting the evidence
was constitutionally insufficient to support his conviction.
See, e.g. Curtis v. Montgomery, 552 F.3d
578, 581-582 (7th Cir. 2009) (rejecting petitioner's
argument that evidence was insufficient to sustain his
conviction for aggravated stalking because petitioner was
"really taking issue with the state court's
interpretation of state law" which was an impermissible
attempt "to use a petition for writ of habeas corpus to
press his preferred interpretation of Illinois law.")
The role of federal habeas courts is narrowly limited
"to [a] review [of] state criminal proceedings for
compliance with federal constitutional mandates."
Lackawanna County Dist. Attorney v. Coss, 532 U.S.
394, 403 (2001). See also Ford v. Norris,
364 F.3d 916, 919 (8th Cir. 2004) ("As the supreme
judicial authority of the state, [the Arkansas Supreme Court]
decides what state law is, an issue which cannot itself be
reviewed in a federal habeas proceeding.").
challenge to the sufficiency of the evidence supporting his
convictions for aggravated robbery and commercial burglary
fail on the merits. Accordingly, the Court need not address
Respondent's argument that Thomas procedurally defaulted
his sufficiency of the evidence claim. See, e.g.,
Lambrix v. Singletary, 520 U.S. 518, 525 (1997)
(explaining that "[j]udicial economy might counsel"
bypassing a procedural-default question if the merits
"were easily resolvable against the habeas
petitioner"); Trussell v. Bowersox, 447 F.3d
588 (8th Cir. 2006) (addressing merits, bypassing limitations
and procedural default analysis, in the interest of judicial
Ineffective Assistance of Counsel Claims
Thomas's Rule 37 appeal, the Arkansas Supreme Court
properly applied the ineffective-assistance standard
established by the Court in Strickland v.
Washington, 466 U.S. 668 (1984) and concluded
that Thomas failed to present any evidence that his counsel
was ineffective either at trial or on appeal. Thomas II,
supra at 2-3.
some of Thomas's ineffective assistance of counsel claims
overlap, the Court has organized and ...