United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS
following recommended disposition has been sent to United
States District Court Chief Judge Brian S. Miller. 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 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 hearing
for this purpose before the District Judge, you must, at the
same time that you file your written objections, include the
1. Why the record made before the Magistrate Judge is
2. Why the evidence proffered at the hearing before the
District Judge (if such a hearing is granted) was not offered
at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at
the hearing before the District Judge 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 hearing before the District Judge.
this submission, the District Judge will determine the
necessity for an additional evidentiary hearing, either
before the Magistrate Judge or before the District Judge.
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
reasons explained below, it is recommended Petitioner's
Petition for Writ of Habeas Corpus (DE # 2) be DISMISSED with
was charged on July 16, 2012, with first-degree murder and
first-degree battery following a shooting at a crawfish party
held in Scott, Arkansas. (Record at 523, 545, 7) The charges
were subsequently amended to include possession of a firearm
and an enhancement for committing murder in the first degree
in the presence of a child. (Record at 9-10) At trial, it was
the testimony of Petitioner that he pulled the gun from his
pocket in self-defense, and in a struggle over the gun, it
discharged twice, resulting in one fatality and one injury.
(Record at 1215-1216) A Pulaski County Circuit Court jury
found the Petitioner guilty of the lesser-included offense of
manslaughter and third degree battery. (Record at 1457-1458)
Petitioner received a sentence of 540 months in prison with
an enhancement because he was a habitual offender and because
the jury found he committed manslaughter with a firearm.
(Record at 1496-1497)
24, 2013, Petitioner timely appealed his conviction to the
Arkansas Court of Appeals. (Record at 87-88) On appeal, he
argued that the trial court erroneously (1) denied the motion
in limine to exclude the testimony of Tammy Davis's
busted lip and black eye as a violation of Ark. R. Evid.
404(b), and (2) denied the Petitioner's request to have
the prosecuting attorney called as a witness. (DE # 12-2 at
13) On September 17, 2014, the Arkansas Court of Appeals
affirmed Petitioner's conviction stating the trial court
did not abuse its discretion, and that Petitioner had failed
to demonstrate resulting prejudice even had such an abuse of
discretion been shown. See Detherow v. State, 2014
Ark.App. 478, 1, 444 S.W.3d 867, 868.
subsequently filed a timely Rule 37 petition, claiming he was
denied effective assistance of counsel. He alleged fourteen
(14) separate points in his petition for his assertion of
ineffective assistance of counsel. The trial court denied the
relief sought, and Petitioner appealed the decision. On
appeal to the Arkansas Supreme Court, the Petitioner did not
reiterate all of the fourteen points he raised in circuit
court. In the opinion, the Arkansas Supreme Court stated in a
“Detherow has restated some of the issues raised in the
petition filed below and in some instances reworded his
arguments. On appeal, an appellant is limited to the scope
and nature of the arguments he made below and that were
considered by the circuit court in rendering its ruling. For
that reason, we will consider only those arguments in the
brief that were raised below and the support for those claim
that appeared in the petition. Feuget v. State, 2015
Ark. 43, at 8, 454 S.W.3d 734, 740 ...