United States District Court, E.D. Arkansas, Pine Bluff Division
STEVEN D. RUSSELL, JR., ADC #151742, Petitioner,
WENDY KELLEY, Director Arkansas Department of Correction, Respondent.
PROPOSED FINDINGS AND RECOMMENDATIONS
VOLPE UNITED STATES MAGISTRATE JUDGE
following recommended disposition has been sent to United
States District Judge Susan Webber Wright. Any party may
serve and file written objections to this recommendation.
Objections should be specific and should include the factual
or legal basis for the objection. If the objection is to a
factual finding, specifically identify that finding and the
evidence that supports your objection. An original and one
copy of your objections must be received in the office of the
United States District Court Clerk no later than fourteen
(14) days from the date of the findings and recommendations.
The copy will be furnished to the opposing party. Failure to
file timely objections may result in a waiver of the right to
appeal questions of fact.
are objecting to the recommendation and also desire to submit
new, different, or additional evidence, and to have a new
hearing for this purpose before either the District Judge or
Magistrate Judge, you must, at the time you file your written
objections, include the following:
1. Why the record made before the Magistrate Judge is
2. Why the evidence to be proffered at the new hearing (if
such a hearing is granted) was not offered at the hearing
before the Magistrate Judge.
3. The details of any testimony desired to be introduced at
the new hearing in the form of an offer of proof, and a copy
or the original of any documentary or other non-testimonial
evidence desired to be introduced at the new hearing.
this submission, the District Judge will determine the
necessity for an additional evidentiary hearing. Mail your
objections and ''Statement of Necessity'' to:
Clerk, United States District Court Eastern District of
Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR
the Court is the Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254, filed by Steven D. Russell, Jr., an
inmate in the East Arkansas Regional Unit of the Arkansas
Department of Correction (ADC). (Doc. No. 1.) Respondent
seeks dismissal of the Petition, saying Mr. Russell claims
are either meritless or procedurally defaulted. (Doc. No.
12.) After careful review of the Petition, Response, and
Reply, for the following reasons, I recommend the Petition be
to the Petition, Mr. Russell was convicted of capital murder
by a Pulaski County jury on January 27, 2012. (Doc. No. 1 at
1.) He was sentenced to life imprisonment without parole,
with an additional 180 months for a firearm enhancement.
(Id.) In its opinion affirming the conviction and
sentence, the Arkansas Supreme Court rejected Mr.
Russell's arguments that a mistrial was necessary when
the jury announced it was deadlocked, and did not find he
should have been acquitted due to a post-traumatic stress
disorder (PTSD) hindering his ability to conform his conduct
to the law or to appreciate the criminality of his conduct.
Russell v. State, 2013 Ark. 369 (2013).
Russell next sought post-conviction relief pursuant to
Arkansas Rule of Criminal Procedure Rule 37, arguing that:
(1) trial counsel was ineffective for failing to redact
medical records containing statements that Petitioner had
broken the jaw of his girlfriend when evidence of that fact
had been excluded by the trial court; (2) counsel was
ineffective for not preserving an issue for appeal about the
trial court allowing the State to seek a second opinion about
Petitioner's PTSD; (3) counsel was ineffective for
failing to state a basis for his mistrial motion after the
jury announced it was deadlocked; and (4) testimony of Dr.
Bradley Diner should not have been admitted at trial because
his opinions were “not generally accepted within the
community and were not based on the literature.” (Doc.
No. 12-1 at 18-26.) After a hearing, the Pulaski County
Circuit Court denied each of Petitioner's claims.
(Id. at 77-81.)
Russell appealed the decision to the Arkansas Supreme Court,
which affirmed, with the court stating that “[b]ecause
any errors demonstrated by Russell are either nonprejudicial
under Strickland or inappropriate for postconviction
consideration, we hold that the circuit court did not clearly
err in denying his petition.” Russell v.
State, 2017 Ark. 174, 5 (2017).
filed the current Petition (Doc. No. 1) on August 14, 2017,
and Wendy Kelley's Response (Doc. No. 12) was filed on
October 30, 2017. Mr. Russell ...