United States District Court, E.D. Arkansas, Pine Bluff Division
Procedure for Filing Objections:
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.
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
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State, 2016 Ark.App. 28, 1 (unpublished).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.
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)
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.
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.
Fulton filed a Rule 37 petition claiming ineffective
assistance of pre-trial counsel,  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.
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.
Attempts to Appeal the Denial of Rule 37
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. Fulton v. Sate,
2017 Ark. 105 (unpublished).
Mr. Fulton's Petition:
petition for a writ of habeas corpus, Mr. Fulton raises the
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
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 ...