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Colston v. Kelly

United States District Court, E.D. Arkansas, Pine Bluff Division

December 18, 2017

CURTIS COLSTON ADC #163872 PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge J. Leon Holmes. 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 the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.

         I. Background

         Pending before the Court is a § 2254 Petition for a Writ of Habeas Corpus filed by Petitioner, Curtis Colston (“Colston”). ECF No. 1. Before addressing Colston's habeas claims, the Court will review the procedural history of the case in state court.

         On April 28, 2016, a Miller County jury found Colston guilty of one count each of aggravated assault and felon in possession of a firearm. Colston was sentenced to 30 years' imprisonment. ECF No. 11-2.

         On direct appeal, Colston argued that the trial court abused its discretion by admitting a cell phone video of Colston pulling a gun on Steven Carter (“Carter”), a man he was arguing with at the Flying J Truck Stop in Texarkana. On May 3, 2017, the Arkansas Court of Appeals affirmed. Colston v. State, 2017 Ark. 282. ECF No. 11-3. Colston then filed a Petition for Rehearing with the Arkansas Court of Appeals and, later, a Petition for Review in the Arkansas Supreme Court. Both of those Petitions were denied. ECF Nos. 11-4 & 5.

         Colston did not seek Rule 37 relief in the Arkansas state courts.

         On August 23, 2017, Colston timely filed this pro se federal habeas action. ECF No. 1.[1] In his federal habeas papers, he argues that he was denied due process and a fair trial when the trial court admitted the allegedly unauthenticated cell phone video.[2] Respondent contends that Colston's habeas claim is not cognizable in a § 2254 habeas action and that Colston has procedurally defaulted that claim. ECF No. 11. Thus, the issues are joined and ripe for resolution.

         For the reasons discussed below, the Court recommends that the Petition for a Writ of Habeas Corpus be denied, and the case dismissed, with prejudice.

         II. Discussion

         The cell phone video giving rise to Colston's habeas claim was taken by an unknown person at the truck stop where Colston pulled a gun on Carter. Neither Carter, the victim of the aggravated assault, nor the person who took the video testified at trial. Donna Bodkin (“Bodkin”), the truck stop manager, testified for the prosecution and was allowed, over the objection of Colston's counsel, to authenticate the video.

         Bodkin testified that she heard “a ‘ruckus' going on in the drivers' lounge, ” after which she escorted Colston outside to leave the truck stop. Colston was angry and told Bodkin that “he was going to go out and get his gun and come back.” Colston v. State, 2017 Ark.App. 282, at *2. Bodkin did not see Colston return, but later heard another “ruckus going on again.” She also heard someone say that “he's got a gun, ” which led her to call the police. According to Bodkin, Carter later “came [to her] with the gun [he had taken from Colston] and laid it in front of her.” It was not until after the incident that Bodkin saw the video, which Carter sent to her on Facebook.[3]

         The Arkansas Court of Appeals held that the video was adequately authenticated by Bodkin, who testified that: (1) the video accurately depicted the truck stop on the date and time in question; (2) she recognized herself and her voice on the video; and (3) she recognized the voice on the video saying, “he's got a gun” as the same voice she heard while in the front of store. Colston v. State, 2017 Ark.App. 282 at *2-4.

         A. Colston's Challenge to the Video is Procedurally Defaulted

         A habeas petitioner must first “fairly present” his claims in state court before seeking § 2254 relief in federal court. Murphy v. King, 652 F.3d 845-848-49 (8th Cir. 2011); 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus ... shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State”). A petitioner must present the substance of his federal habeas claim not only in the state trial court, but also in “one complete round of the State's established appellate review process.” See Murphy v. King, 652 F.3d 845, 848-49 (8th Cir. 2011); Gra ...


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