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Russell v. Kelley

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

January 10, 2018

STEVEN D. RUSSELL, JR., ADC #151742, Petitioner,
WENDY KELLEY[1], Director Arkansas Department of Correction, Respondent.




         The 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.

         If you 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 inadequate.
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.

         From 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 72201-3325


         Before 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 dismissed.

         I. BACKGROUND

         According 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).

         Mr. 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.)

         Mr. 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).

         Petitioner 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 ...

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