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Detherow v. Kelley

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

February 6, 2018

TERRY LYNN DETHEROW ADC # 083711 PETITIONER
v.
WENDY KELLEY, Director Arkansas Department of Correction RESPONDENT

          PROPOSED FINDINGS AND RECOMMENDATIONS

         INSTRUCTIONS

         The 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.

         If you 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 following:

1. Why the record made before the Magistrate Judge is inadequate.
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.

         From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

         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

         DISPOSITION

         For the reasons explained below, it is recommended Petitioner's Petition for Writ of Habeas Corpus (DE # 2) be DISMISSED with prejudice.

         Procedural History

         Petitioner 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)

         On June 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.

         Petitioner 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 footnote:

“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 ...

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