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Leach v. Kelley

United States District Court, W.D. Arkansas, Fort Smith Division

March 12, 2018

RAYMOND DAVID LEACH III PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. JAMES R. MARSCHEWSKI U.S. MAGISTRATE JUDGE.

         Before 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.

         I. Background

         A Polk 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.

         The 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.

         The 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., p. 16).
Ground Eight: Counsel failed to procure the attendance of witnesses material to defense.

(Id., p. 17).

         II. Discussion

         Factual Summary:

         The 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 Court's decision:

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 capital murder.
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.

         The Petitioner has raised two categories of error in his 2254 petition: (A) Trial Court Error and (B) Ineffective Assistance of Counsel.

         A. Trial Court Error:

         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.[1] (Doc. 1, p. 7).

         The 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).

         This 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 because:

"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).

         The 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, 350 (2000).

         The 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 ...


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