United States District Court, E.D. Arkansas, Pine Bluff Division
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.
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.
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.
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.
did not seek Rule 37 relief in the Arkansas state courts.
August 23, 2017, Colston timely filed this pro se
federal habeas action. ECF No. 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. 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.
reasons discussed below, the Court recommends that the
Petition for a Writ of Habeas Corpus be denied, and the case
dismissed, with prejudice.
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.
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.
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.
Colston's Challenge to the Video is Procedurally
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 ...