United States District Court, E.D. Arkansas, Pine Bluff Division
Kristine G. Baker United States District Judge.
Court has reviewed the Proposed Findings and Recommendations
submitted by United States Magistrate Judge Joe J. Volpe and
the plaintiff Tyrone Davis's objections (Dkt. Nos. 8, 9).
After carefully considering the objections and making a
de novo review of the record in this case, the Court
concludes that the Proposed Findings Recommendations should
be, and hereby are, approved and adopted in their entirety as
this Court's findings in all respects.
Court writes to address Mr. Davis's objections to the
Proposed Findings and Recommendations (Dkt. No. 9). Mr.
Davis's first objection is to the Court's legal and
factual conclusion that his trial counsel's failure to
file a rape-shield motion was not ineffective assistance of
counsel. Mr. Davis contends, had there been a request for a
rape-shield hearing, that there would have been a reasonable
probability that he would have been acquitted and that he
would have received a fair trial. He contends that there
would have been more evidence to go to the jury than solely
his and the victim's credibility because the jury would
have heard evidence of prior similar accusations by the
victim, L.R., which did not result in criminal charges.
Arkansas, “evidence of specific instances of the
victim's prior sexual conduct with the defendant or any
other person, evidence of a victim's prior allegations of
sexual conduct with the defendant or any other person, which
allegations the victim asserts to be true, or evidence
offered by the defendant concerning prior allegations of
sexual conduct by the victim with the defendant or any other
person if the victim denies making the allegations is not
admissible by the defendant, either through direct
examination of any defense witness or through
cross-examination of the victim or other prosecution witness,
to attack the credibility of the victim, to prove consent or
any other defense, or for any other purpose.” Ark. Code
Ann. § 16-42-101(b). As such, the statute specifically
precludes the admissibility of evidence of a victim's
prior allegation of sexual conduct if the victim asserts that
the allegation is true. State v. Kindall, 428 S.W.3d
486, 489 (Ark. 2013) (determining that, when the victim
asserts that prior allegations of sexual conduct are true,
the rape-shield statute precludes the admissibility of the
evidence surrounding the allegations to attack the
Mr. Davis's trial counsel testified that she believed
L.R. would have testified that the prior accusation was true.
Accordingly, evidence of the prior accusation would have been
inadmissible and cannot be the basis for an ineffective
assistance of counsel claim under Arkansas law. See,
e.g., Small v. State, 264 S.W.3d 512, 517 (Ark.
2007) (“Counsel is not ineffective for failing to make
an argument that is meritless.”). Moreover, failing to
file a rape-shield motion, which would have only proffered
inadmissible evidence, could hardly result in the type of
prejudice to the petitioner required by Strickland v.
Washington, 466 U.S. 688, 687 (1984).
the court had admitted evidence of L.R.'s prior
accusation, Mr. Davis fails to establish how L.R.'s
testimony, that she had previously been assaulted, would have
resulted in acquittal of Mr. Davis. L.R. testified in detail
regarding Mr. Davis's conduct. The fact that L.R.
previously reported an assault, which resulted in no criminal
charges, does not establish that L.R. lied about the prior
assault, nor does it implicate L.R.'s credibility.
Therefore, the Court agrees with the Proposed Findings and
Recommendations that Mr. Davis has not shown that the
Arkansas court misapplied Strickland on this point.
Davis next objects to the legal and factual conclusion that
his trial counsel's questioning of M.W. was not
ineffective assistance of counsel. Mr. Davis maintains that
M.W. should have been treated as a hostile witness and
cross-examined by his trial counsel. Mr. Davis contends that
his trial counsel should have pursued questions regarding
M.W.'s alleged pattern of attempts to entangle men in
rape accusations, as well as her attempts to fuel L.D.'s
accusations against her uncle, to have her brother arrested
for the rape of B.W., and to convince B.W. to persuade Mr.
Davis into having sex with her so that Mr. Davis would be
arrested for statutory rape. Mr. Davis further maintains that
his trial counsel was aware of M.W.'s prior rape
accusations and failed to pursue that line of questioning,
even though it would have damaged M.W.'s credibility and
strengthened Mr. Davis's case.
the state did not call M.W. as a witness; so Mr. Davis's
trial counsel's only option was to question M.W.
directly. Several times during M.W.'s testimony, opposing
counsel objected to Mr. Davis's trial counsel's
attempts to lead M.W., and at a bench conference, the trial
judge denied Mr. Davis's trial counsel's request to
treat M.W. as a hostile witness. The Proposed Findings and
Recommendations determined that the circuit court's
finding that trial counsel was not ineffective for her line
of questioning of M.W. did not unreasonably apply
Strickland. The Court agrees. Mr. Davis's
argument is not supported by the facts in the record. The
benchmark for judging any claim of ineffectiveness must be
whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.
Strickland, 466 U.S. at 686. Here, counsel attempted
to treat M.W. as a hostile witness and was prohibited from
doing so by the judge. Thus, counsel's conduct is not the
source of any potential error.
Mr. Davis objects to the legal and factual conclusion that
trial counsel's failure to subpoena B.W. was not
ineffective assistance. Mr. Davis contends that B.W.'s
testimony would have cast doubt on the victim's
credibility. He contends that his trial counsel's
“uncertainty” regarding the content of B.W.'s
testimony is evidence that B.W.'s testimony would not
have been able to withstand scrutiny and, thus, would have
favored Mr. Davis's case. Mr. Davis contends that
B.W.'s testimony was necessary to support his allegation
that the victim was not credible.
to Strickland, a strategic choice that falls within
the range of reasonable professional judgment is not
ineffective assistance. Id. at 699. Here, Mr.
Davis's trial counsel testified that she interviewed
B.W., that B.W. was adamant that she did not want to testify,
and that B.W. told Mr. Davis's trial counsel that she had
nothing to testify about and did not remember any scheme to
entrap Mr. Davis. Mr. Davis presents no evidence that B.W.
would have testified otherwise or that his trial counsel
failed to interview B.W. Thus, the record evidence in this
case indicates that Mr. Davis's trial counsel exercised
her professional judgment after a reasonable inquiry that
included an interview with the purported witness, B.W. The
Court agrees with the Proposed Findings and Recommendations
that the Arkansas court did not unreasonably apply
Strickland in concluding that Mr. Davis's
allegation of ineffective assistance did not merit relief.
reasons explained in the Proposed Findings and
Recommendations and in this Order, the Court denies with
prejudice Mr. Davis's petition for habeas corpus
relief. The Court also declines to issue a certificate of
appealability, as the Court determines that Mr. Davis has not
made a substantial showing that he was denied a
constitutional right. See Rule 11 of the ...