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Fulton v. Kelley

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

March 27, 2018

WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT


         I. Procedure for Filing Objections:

         This Recommended Disposition (“Recommendation”) has been sent to Judge J. Leon Holmes. Any party to this suit may file written objections with the Clerk of Court within 14 days of filing of the Recommendation. Objections must be specific and must include the factual or legal basis for the objection. An objection to a factual finding must identify the finding of fact believed to be wrong and describe the evidence that supports that belief.

         By not objecting, any right to appeal questions of fact may be jeopardized. And, if no objections are filed, Judge Holmes can adopt this Recommendation without independently reviewing the record.

         II. Background:

         A. Trial Testimony

         After a bench trial, Deontae Fulton was convicted of first-degree murder in the June, 2013 death of Juan Reyes. Fulton v. State, 2016 Ark.App. 28, 1 (unpublished). At trial, Atarius Bishop testified that Mr. Fulton was a passenger in a car he was driving. (#11-2 at 139-44) Id. at 2. After riding around and smoking marijuana, the two stopped at the home of Morisha McCoy. (Id.) Ms. McCoy's boyfriend, Mr. Reyes, was in the front yard drinking a beer. (Id.) The three men, who had grown up together, began talking. (Id.) Mr. Bishop and Mr. Fulton had both had a sexual relationship with Ms. McCoy, and during the conversation, Mr. Fulton began describing details of his sexual relationship with Ms. McCoy. (#11-2 at 122-23, 125, 142-43) Mr. Fulton asked Mr. Reyes if he wanted to fight, but Mr. Reyes declined. (Id. at 142-43) Id.

         Eventually, Mr. Fulton got out of the vehicle and knocked the beer from Mr. Reyes's hand. (Id. at 143) As Mr. Bishop stepped out of the vehicle and started toward the other side, he heard a gunshot. (Id. at 144) He saw Mr. Reyes fall to the ground and Mr. Fulton holding a pistol. (Id.) Mr. Bishop and Mr. Fulton got back into the vehicle and left. (Id.) Mr. Bishop denied any involvement in the crime and denied knowing that Mr. Fulton intended to kill Mr. Reyes. (Id. at 148) Id.

         Dr. Adam Craig of the Arkansas State Crime Laboratory testified that Mr. Reyes was shot in the head at a slightly downward angle from two to three feet away. (#11-2 at 206-07) The wound severed Mr. Reyes's spine and killed him instantly. (#11-2 at 207, 212) Id. The Court sentenced Mr. Fulton to 35 years' imprisonment in the Arkansas Department of Correction. (Id. at 410-411) Id. at 1.

         B. Direct Appeal

         Mr. Fulton appealed the sufficiency of the evidence to support his first-degree murder conviction and claimed that Mr. Bishop was an accomplice whose testimony was uncorroborated. (#11-3 at 57-59) The Arkansas Court of Appeals affirmed, concluding there was sufficient evidence to support the conviction. Fulton, 2016 Ark.App. 28, at 3. The Court further found that the issue as to whether Mr. Bishop was an accomplice whose testimony was uncorroborated was not preserved for appeal. Id.

         C. Rule 37

         Mr. Fulton filed a Rule 37 petition claiming ineffective assistance of pre-trial counsel, [1] a due process violation, and mental incompetence. (#11-7) He filed a motion to amend his Rule 37 petition to add claims of judicial error in failing to consider lesser-included offenses, failing to declare a mistrial, and rendering a guilty verdict when there was insufficient evidence. He also sought to add additional ineffective-assistance claims for failing to investigate, failing to file mandatory motions, and failing to request lesser-included offenses. The trial court denied the petition. (#11-9) While the court did not hold a hearing on the petition, on May 24, 2016, it denied the original petition in a written order that addressed the merits. (#11-9)

         On June 10, 2016, Mr. Fulton filed a motion for reconsideration and a second Rule 37 petition with three claims. First, Mr. Fulton claimed ineffective assistance of trial-counsel for failing to file a motion for “accomplice instructions” and a motion for the court to consider lesser-included offenses. Second, he claimed ineffective assistance of his appellate counsel for failing to raise claims of his trial counsel's ineffective assistance and of judicial errors. And third, Mr. Fulton claimed that the trial court had violated his due process rights by sitting both as the trier-of-fact and judge and for failing to dismiss the first-degree murder charge for insufficient evidence. (#11-10) On June 23, 2016, the trial court affirmed its denial of the original petition and dismissed the second petition for lack of jurisdiction, because it was successive. (#11-11)

         D. Attempts to Appeal the Denial of Rule 37

         On October 25, 2016, Mr. Fulton filed a “motion for leave to file a second notice of appeal” with the trial court. (#11-12) In the motion, Mr. Fulton claims that he had attempted to file his first notice of appeal on June 1, 2016. (Id.) The trial court found nothing in the clerk's records to indicate that a first notice of appeal was filed and denied the motion as untimely under Rule 2 of the Arkansas Rules of Appellate Procedure -Criminal. (#11-13) Mr. Fulton filed a motion for rule on the clerk with the Arkansas Supreme Court. (#11-14) The motion was denied, however, because Mr. Fulton had never filed a certified record to establish jurisdiction.[2] Fulton v. Sate, 2017 Ark. 105 (unpublished).

         III. Mr. Fulton's Petition:

         In his petition for a writ of habeas corpus, Mr. Fulton raises the following claims:

1. Ineffective assistance of pre-trial-counsel for coercing him into waiving his right to a jury trial (#2 at 5);
2. Ineffective assistance of pre-trial-counsel for failing to adequately prepare for trial and abandoning his case before trial (#2 at 5, #3 at 1-3);
3. Trial court error for failing to question his jury trial waiver (#3 at 3-4);
4. Trial court error for failing to recuse from the Rule 37 petition and for ruling without a hearing (#2 at 5, #3 at 4-5);
5. Ineffective assistance of trial counsel for failing to seek an accomplice declaration; failing to seek a lesser-included offense based on the fact he had been drinking and smoking marijuana; and failing to properly review and investigate (#2 at 6, #3 at 6, 8);
6. Ineffective assistance of appellate counsel for failing to raise sufficiency-of-evidence; failing to argue insufficient evidence to support mental culpability; failing to investigate; and failing to rebut the State's claim there was sufficient corroboration ...

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