United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
JAMES R. MARSCHEWSKI U.S. MAGISTRATE JUDGE.
the undersigned the petitioner's Habeas Corpus Petitions
(ECF No. 1) filed February 5, 2016 under 28 U.S.C. Section
2254. The State filed its Response (ECF No. 9) on March 9,
2016 and the Petitioner filed his Reply (ECF No. 16) on July
21, 2016. An order was entered on September 13, 2016 (ECF No.
17) appointing the Federal Public Defender and setting the
matter for a hearing. After several appeals and continuances
a hearing was conducted on March 2, 2018 and the matter is
now ready for a Report and Recommendation.
County, Arkansas jury convicted the petitioner, Raymond David
Leach III, of the capital murder of Christopher Casey. The
Petitioner filed a timely appeal claiming five points: (1)
that the circuit court erred in not allowing appellant to
cross-examine Tyler Prine regarding threats he allegedly made
to another witness; (2) that the circuit court erred in
denying appellant's motion for directed verdict on
capital murder; (3) that the circuit court erred in denying
appellant's motion to suppress his statement; (4) that
the circuit court erred in allowing inadmissible evidence;
and (5) that the circuit court erred in allowing a
law-enforcement officer to give his opinion. He was sentenced
to life imprisonment without parole. His conviction was
affirmed April 26, 2012 in Leach v. State, 2012 Ark.
179, 402 S.W.3d 517.
petitioner then timely filed a pro se petition for
post-conviction relief pursuant to Ark. R. Crim. P. 37.1 et
seq. The circuit court denied the Rule 37 petition without a
hearing. Acting pro se, the petitioner appealed the denial of
the Rule 37 petition, and on April 9, 2015, the Supreme Court
of Arkansas dismissed the appeal before any briefs were filed
because it was obvious from the record that the petitioner
could not prevail on appeal. Leach v. State, 2015
Ark. 163, 459 S.W.3d 795.
Petitioner filed the current Habeas Petition on February 5,
2016 alleging the following:
Ground One: That the trial court erred in not allowing
evidence of a specific instance of conduct of a witness to
show he wasn't truthful. (ECF No. 1, p. 7).
Ground Two: That the trial court erred in not granting
appellant's motion for Directed verdict where there was
insufficient evidence for a conviction. (Id., p. 8).
Ground Three: That the trial court erred in allowing
statement of Raymond Leach when part of it was before the
Miranda Rights were given. (Id., p. 10).
Ground Four: That the trial Court erred with allowing a
portion of the video where he (sic) stated that Kevin Burkett
tried to call him, to get his girls taken away from him.
(Id., p. 11).
Ground Five: That the trial Court erred in allowing an
officer to testify that something on appellant's had
appeared to be blood. (Id., p. 13).
Ground Six: Ineffective assistance of counsel-Failed to make
Appellant aware of possible plea bargain negotiations.
(Id., p. 14).
Ground Seven: Causation rest upon Tyler Prine. (Id.,
Ground Eight: Counsel failed to procure the attendance of
witnesses material to defense.
(Id., p. 17).
jury returned a verdict of guilty on capital murder, and the
court sentenced appellant to life in prison. The judgment and
commitment order was filed on June 22, 2011, and appellant
filed a timely notice of appeal the following day. Leach
v. State, 2012 Ark. 179, (2012). The following is a
factual summary as set forth in the Arkansas Supreme
On July 17, 2009, at approximately 3:00 a.m., Officer Bo
Hayes with the Polk County Sheriff's Department responded
to an emergency call of a possible murder at an intersection
in Cove, Arkansas. Upon arriving, he discovered four people,
including appellant, gathered near a pick-up truck.
Christopher Casey, who had been stabbed in the neck, face,
and chest, was found in the driver's seat of the pick-up
truck. The other three people present-Tammy Shepard, Jack
Shepard, and Tyler Prine-all indicated to Officer Hayes that
appellant had stabbed Casey. Appellant was placed under
arrest and later charged with premeditated and deliberate
Appellant's jury trial was held in Polk County Circuit
Court in June 2011 where the following evidence was
presented. Jack Shepard testified that when he left his home
between 2:30 and 2:45 a.m. to go to work on July 17, 2009, he
noticed Tyler Prine's truck blocking the road. Prine was
Shepard's cousin by marriage and lived nearby. When
Shepard stopped, he saw Prine and a "skinny dud"
whom he identified in court as appellant; both were drunk;
and appellant appeared agitated, walking in circles and
throwing his hands in the air. Shepard testified that he saw
appellant toss something into the back of the truck. Prine
then walked over to Shepard and said that appellant had just
stabbed and killed the driver of the truck. Shepard exited
his truck to go check on the driver. Shepard stated that he
heard appellant repeatedly say that he had stabbed the driver
because Prine wanted appellant to do so and that he and Prine
needed to take the truck and get rid of the body. After
Shepard found the driver slumped over the steering wheel and
bleeding profusely, he returned to his house to retrieve his
wife, Tammy Shepard, who was a nurse, and to call 911.
Tyler Prine testified that after work on July 16, 2009, he
went to a party where he drank alcohol and smoked marijuana.
He stated that appellant was there and was "pretty
drunk" Prine testified that he left the party with
appellant and Casey to go to Kevin Burkett's house, was
unsure how long they stayed, but remembered passing out in
his truck and asking appellant and Casey to take him home.
With Prine in the middle of the truck, Casey drove, and
appellant was seated by the passenger door. Prine said that
when they were near his house, appellant jumped over Prine
and began punching Casey. When Prine attempted to grab
appellant, Prine realized that appellant had a knife. Prine
and appellant jumped out of the truck. Appellant asked what
he ought to do with the knife, and Prine said to put it in
the tool box. Prine testified that he asked appellant why he
had stabbed Casey and that appellant said that he thought
Prine wanted him to do so. Prine denied asking appellant to
kill Casey. After Shepard came back with his wife, they all
waited for the police to arrive. Prine stated that he told
the police the knife was in the tool box.
Buck Bailey of the Polk County Sheriff's Office testified
that he transported appellant, who was "very
intoxicated" to the jail but that despite
appellant's intoxication, he followed orders. Special
Agent Gordon Diffee with the Arkansas State Police testified
that he collected evidence from the crime scene, including a
butterfly knife with a six-inch blade found in the
truck's tool box, and that he took photographs of the
scene and appellant. During Agent Diffee's interview with
appellant, he claimed that he had been drinking heavily and
taking prescription drugs on the evening of July 16, 2009;
that he did not remember getting in the truck with Prine and
Casey; that he did not remember stabbing Casey; and that he
did not kill anyone. He also admitted that he owned several
knives, including a butterfly knife with a six-inch blade.
Dr. Paul DeYoub, who performed a court-ordered psychological
examination of appellant, testified that appellant admitted
that he owned the knife that Agent Diffee had recovered from
the crime scene.
The State also presented the testimony of Joshua Kyle, who
testified that he saw appellant at a party on the evening of
July 16, that appellant was "extremely intoxicated"
and that he "talked all night about killing
somebody." Kyle stated that appellant was talking like
he could "whop [sic] anybody's butt and no one
[could] stop him."
Forensic experts testified that there was blood on the knife
found in the tool box of Prine's truck and on the pants
appellant was wearing when he was arrested. DNA tests matched
the blood on those items to Casey within all scientific
certainty. The medical examiner testified that Casey died
from multiple stab wounds, including a nonsurvivable stab
wound to the chest that perforated his heart. The medical
examiner stated that the wounds could have been made with the
knife found in the tool box.
Petitioner has raised two categories of error in his 2254
petition: (A) Trial Court Error and (B) Ineffective
Assistance of Counsel.
Trial Court Error:
One: That the trial court erred in not allowing
evidence of a specific instance of conduct of a witness to
show he wasn't truthful. (Doc. 1, p. 7).
Petitioner is contending that the court committed error in
not allowing his attorney to ask certain questions of a
witness, Tyler Prine. (Id., p. 21). According to his
brief his attorney "was going to further inquire if
Tyler Prine had threatened Adam Kyle (a potential witness for
the defense) if he came to court and testified."
(Id., p. 24).
issue was specifically raised by the Petitioner in his appeal
and the dialogue between the Court, Defense and Prosecution
was set forth in the court's opinion. The Arkansas
Supreme Court held that the trial court did not commit error
"Based on this court's precedent in Halford,
appellant did not properly preserve his argument regarding
exclusion of evidence where he did not proffer what
Prine's testimony would have been. This is not a case
where the substance of evidence is clear from the context of
the questions being asked because appellant's counsel
never asked a question relating to the alleged threats-all
counsel asked was whether Prine knew the other witness and
had talked to him recently. This court would have to
speculate, based on those basic introductory questions, what
the evidence appellant sought to introduce was. From the
discussion at the bench, it appears that the court and both
parties knew appellant wanted to question Prine about
threatening a witness; however, to properly preserve the
issue, appellant needed to be more specific on the record
about what he wanted to ask Prine and what he believed the
responses to those questions would be so this court could
conduct a proper review." Leach v. State, 2012
Ark. 179, 10, 402 S.W.3d 517, 525 (2012).
Halford case stated that "our Rules of Evidence require
that when challenging the exclusion of testimony, an
appellant must make a proffer of the excluded evidence at
trial so that this court can review the decision, unless the
substance of the evidence is apparent from the context."
Halford v. State, 342 Ark. 80, 86, 27 S.W.3d 346,
trial court's decision was supported by the record and
adequately reviewed by the Arkansas Supreme Court. A federal
court is precluded from substantively considering a habeas
corpus claim that a state court has disposed of on
independent and adequate nonfederal grounds, including ...