United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATION
following recommended disposition has been sent to United
States District Court Judge J. Leon Holmes. You may file
written objections to all or part of this Recommendation. If
you do so, those objections must: (1) specifically explain
the factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court Clerk within fourteen
(14) days of this Recommendation. By not objecting, you may
waive the right to appeal questions of fact.
Jerome Stover (“Stover”) seeks habeas corpus
relief. Stover originally filed a petition for relief pro
se. Docket entry no. 2. Subsequently, attorney Craig
Lambert entered an appearance in the case and submitted an
amended petition for writ of habeas corpus. Docket entry nos.
11& 19. Respondent Wendy Kelley (“Kelley”)
has filed a response to the amended petition. Docket entry
challenges his 2013 convictions from Benton County Circuit
Court on the charges of possession of a controlled substance,
possession of a firearm by certain persons, and simultaneous
possession of drugs and firearms. Stover was sentenced to a
term of 40 years' imprisonment. On direct appeal to the
Arkansas Court of Appeals, Stover argued: (1) the evidence
was insufficient to prove he possessed a usable amount of the
controlled substance, methamphetamine; (2) the trial court
erred in failing to grant a mistrial because jurors may have
seen him wearing a jail identification bracelet prior to
trial; and (3) the trial court erred by allowing the
prosecution to introduce evidence in the trial sentencing
phase showing that Stover had later been arrested, but not
convicted, on other charges. The convictions were affirmed.
Stover v. State, 2014 Ark.App. 393. The appellate
Court specifically found the sufficiency of the evidence
claim was not preserved for review because Stover argued at
trial that he lacked intent to possess methamphetamine, a
different argument than the claim on appeal that the
prosecution failed to prove possession of a usable amount of
methamphetamine. Thus, the Court of Appeals declined to
address the sufficiency of the evidence argument. The Court
of Appeals also declined to address Stover's argument
that a mistrial should have been granted because jurors may
have seen his jail identification bracelet. The appellate
Court held the issue was not preserved because Stover never
obtained a ruling on his motion for mistrial. Finally, the
Court of Appeals found the trial court did not err in
admitting the testimony of a subsequent similar crime during
the trial's sentencing phase.
sought Rule 37 relief in September 2014, raising eight
grounds: (1) the trial judge had a conflict of interest and
should have recused because Stover had filed a grievance
against the judge with the Judicial Discipline and Disability
Commission; (2) both of the trial attorneys representing
Stover had conflicts of interest because Stover filed a
complaint against one of the attorneys with the Public
Defender Commission; (3) he received ineffective assistance
of counsel when his attorneys failed to move for a directed
verdict on the basis that the prosecution failed to prove he
possessed a usable amount of methamphetamine; (4) he received
ineffective assistance of counsel when his attorneys failed
to object to the prosecution's amendment of the criminal
charges to include a count of simultaneous possession of
drugs and firearms; (5) he received ineffective assistance of
counsel when his attorneys failed to challenge the underlying
probable cause for an arrest warrant issued by Washington
County; (6) he received ineffective assistance of counsel
when his attorneys failed to obtain a ruling on the motion
for mistrial after it was noted that Stover was wearing his
jail identification bracelet while in the presence of the
jury panel; and (7) he received ineffective assistance of
counsel when his attorneys failed to investigate and
interview witnesses. He requested a hearing, which was denied
by the trial court.
trial court, in a January 2015 Order, denied the Rule 37
petition. Stover's appeal to the Supreme Court of
Arkansas was unsuccessful. Stover v. State, 2016
Ark. 167. In this opinion the Court accurately identified
Strickland v. Washington, 466 U.S. 668 (1984) as
setting the standard for analyzing allegations of ineffective
assistance of counsel. Thus, throughout this opinion the
parties are in agreement that Strickland is the
“clearly established Federal law, as determined by the
Supreme Court” as that phrase is used in 28 U.S.C.
§ 2254(d)(1), (2).
amended petition for writ of habeas corpus advances the
following claims for relief:
is actually innocent of the crime of possession of a
controlled substance and the crime of simultaneous possession
of drugs and firearms;
received constitutionally ineffective assistance of counsel
in the following ways:
a. Failure to properly challenge the sufficiency of the
evidence at trial by claiming the prosecution failed to prove
he possessed a usable amount of methamphetamine;
b. Failure to challenge his forty year sentence as excessive
under the Eighth Amendment;
c. Trial counsel labored under a conflict of interest;
d. Failure to object to inadmissable and prejudicial
testimony from Benton County Deputy Sheriff Charles Wells
e. Failure to interview and call witnesses at trial;
f. Failure to object to the prosecution's amendment of
the information, and prosecutorial vindictiveness in amending
the information; and g. Failure to properly object, move for
a mistrial, and preserve the objection when Stover was seen
by the jury wearing a jail identification bracelet.
in his amended petition, anticipated that Kelley would
contend that some of his claims were procedurally barred for
failure to adequately raise the claims in state court. As a
result, he offers arguments why the procedural bar should be
excused and the claims all considered on their merits. Stover
cites Martinez v. Ryan, 566 U.S. 1 (2012) and
subsequent cases to overcome the procedural lapse in state
court. Stover was correct in anticipating Kelley's
response, as she cites claims 2(b), (d), and (f) as
procedurally ba rred, and discusses the import and
application of Martinez.
guided by the following language of the Eighth Circuit Court
In cases such as this, it might well be easier and more
efficient to reach the merits than to go through the studied
process required by the procedural default doctrine. Recent
commentary points up the problems with the cause and
[T]he decision tree for habeas review of defaulted claims is
intricate and costly. . . . In essence, Sykes and
Strickland require habeas lawyers and federal judges
and magistrates to work through the equivalent of a law
school exam every time a defendant tries to escape procedural
McKinnon v. Lockhart, 921 F.2d 830, 833 n.7 (8th
Cir. 1990) (quoting Jeffries & Stuntz,
Ineffective Assistance and Procedural Default in
Federal Habeas Corpus, 57 U.Chi.L.Rev. 679, 690 (1990)).
See also Williams v. Norris, 612 F.3d 941, 953
(8th Cir. 2010). In this instance, we find it
wiser and a better use of judicial resources to forego the
procedural default analysis and address the merits of
Stover's claim for relief.
Stover is actually innocent of possession of a controlled
substance and the crime of simultaneous possession of drugs
maintains he is actually innocent because the prosecution
failed to prove he possessed a usable amount of
methamphetamine. Stover relies upon Harbison v.
State, 302 Ark. 315 (1990), where the Supreme Court of
Arkansas held that possession of less than a usable amount of
cocaine did not constitute criminal possession of the drug.
Stover points to the testimony of Julie Hathcock
(“Hathcock”), a forensic chemist working for the
Arkansas State Crime Laboratory, that the baggie found on
Stover when arrested contained .1736 grams of a white
substance. Docket entry no. 12-2, page 226. Hathcock tested
the substance, finding it to be methamphetamine and dimethyl
sulfone. She described dimethyl sulfone as “just a
cutting agent” or “filler” which dilutes
the methamphetamine. Docket entry no. 1202, page 227.
Stover's counsel inquired: “Were you able, through
testing, to determine how much methamphetamine and how much
dimethyl sulfone were contained is this sample [the .1736
grams]?” Hathcock replied, “No, sir.”
Id. Stover concludes that Hathcock's testimony
was therefore insufficient to prove Stover possessed a usable
amount of methamphetamine. Stover reasons that it was
“entirely possible that the substance seized from
Stover contained only a trace amount of methamphetamine and
was ninety-nine percent dimethyl sulfone.” Docket entry
no. 19-1, page 6.
question of whether a usable amount of methamphetamine was
proved by the prosecution was not addressed in Stover's
direct appeal because the Arkansas Court of Appeals found the
issue was not preserved for appeal. However, the issue was
addressed by the state courts when Stover claimed, in his
Rule 37 petition, that his trial attorneys were ineffective
for failing to preserve the claim for direct appeal. The
trial court and the Supreme Court of Arkansas found no
prejudice accrued to Stover due to his trial attorneys'
failure to preserve this issue. The Supreme Court of Arkansas
In his third point on appeal, Stover contends that counsel
were ineffective when they failed to move for a directed
verdict on the basis that there was insufficient proof that
he possessed a usable amount of a controlled substance. This
specific challenge to the sufficiency of the evidence was
raised on direct appeal and was found to have been waived.
Stover, 2014 Ark.App. 393, at 1, 437 S.W.3d at 697.
Stover alleges that he was prejudiced by the failure to
preserve the issue because the evidence was insufficient to
show he possessed a usable amount of methamphetamine because
expert testimony established that the sample found in his
possession contained 0.1736 grams of both methamphetamine and
dimethyl sulfone, but that the specific amounts of each
substance contained in the sample could not be ascertained.
However, the amount of a diluent, such as dimethyl sulfone,
discovered in a controlled substance does not negate the
criminality of its possession. See Ark.Code Ann.
§ 5-64-419(a)(b)(1)(A) (Supp. 2011) (stating in
pertinent part that it is unlawful to possess methamphetamine
with an aggregate weight including an adulterant or diluent
in an amount that is less than two grams); see also Jones
v. State, 357 Ark. 545, 553, 182 S.W.3d 485, 489 (2004)
(holding that a measureable amount of methamphetamine
includes the amount of the pure drug plus all adulterants).
Furthermore, we have concluded that possession of 100
milligrams constituted a usable amount of methamphetamine.
Jones, 357 Ark. at 553, 182 S.W.3d at 489. Here, the
expert's testimony established that Stover possessed more
than 100 milligrams of methamphetamine. Stover fails to
demonstrate that had counsel preserved this issue for
appellate review, the appellate court would have found that
the evidence was insufficient to support the conviction.
See Strain v. State, 2012 Ark. 42, at 3-4, 394
S.W.3d 294, 298 (per curiam).
Stover v. State, 2016 Ark. 167, 5-6.
the state court has ruled on the merits of a petitioner's
claims, a writ of habeas corpus may not be granted unless the
state court's decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court” or the
state court's decision “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court.” 28 U.S.C.
§ 2254(d)(1), (2). Here, Stover does not plead or prove
that the Arkansas court ruling that he possessed a usable
amount of methamphetamine was contrary to, or involved an
unreasonable application of, clearly established federal law.
Although the state Supreme Court did not specifically cite
federal law, that failure is not problematic as neither the
court's reasoning nor result contradicts federal law.
See Cox v. Burger, 398 F.3d 1025, 1030
(8thCir. 2005). The applicable federal law
requires the court to ask if, “after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979)
[emphasis in original]. The Supreme Court of Arkansas'
ruling that Stover possessed a usable amount of
methamphetamine is consistent with, and a reasonable
application of the Jackson v. Virginia standard.
has also not shown that the adjudication of the claim by the
Supreme Court of Arkansas resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented. The record shows Stover possessed
.1736 grams of a white substance, which forensic chemist
Hathcock testified was methamphetamine and dilutant dimethyl
sulfone. The relevant Arkansas statute, cited by the Supreme
Court of Arkansas, provides it is unlawful to possess
methamphetamine with a weight, “including an
adulterant or diluent, ” of less than 2 grams.
Ark. Code Ann. § 5-64-419(a)(b)(1)(A) (emphasis added).
Thus, the statute, by definition, includes the weight of the
diluent with the weight of the controlled
substance, in this instance methamphetamine. The statutory
definition on how to calculate the amount, coupled with
Arkansas case law holding 100 milligrams of methamphetamine
to be a usable amount for purposes of possession,
demonstrates that Stover possessed a usable amount of the
controlled substance. (100 milligrams equals .1 gram; Stover
possessed .1736 grams). See Jones v. State, 357 Ark.
cites Harbison v. State, 302 Ark. 315 (1990), to no
avail. Harbison, decided fourteen years before
Jones, was convicted of possession of cocaine based
upon his possession of a bottle which contained cocaine dust
or residue. The amount of cocaine was described as too small
to weigh with state crime laboratory equipment, which could
weigh nothing smaller than one milligram. In other words, the
amount of cocaine was one hundred times smaller than the
amount recognized in Jones to be a usable amount.
Because Stover possessed well over 100 milligrams of
methamphetamine, the Harbison decision does not
operate in his favor. Having carefully reviewed the trial
record, we find the evidence meets and exceeds the
requirements of Jackson v. Virginia. There is no
merit in Stover's challenge to the sufficiency of the
challenge to his possession convictions is also framed as a
freestanding claim of actual innocence. Citing Herrera v.
Collins, 506 U.S. 390 (1993), Stover argues that he
demonstrates actual innocence on its own, not as a gateway to
establishing other constitutional errors. Even if we assume a
freestanding claim of actual innocence is a cognizable claim
for habeas relief, Stover concedes that his burden is
extraordinarily high, and that he must establish “facts
which unquestionably establish his innocence.” See
Whitfield v. Bowersox, 324 F.3d 1009 (8th
Cir. 2003). The flaw in Stover's argument is that he does
not submit new evidence to demonstrate actual innocence.
Rather, he points to the evidence adduced at trial and argues
factual innocence based on his interpretation of that
evidence. See, e.g., Bousley v. U.S., 523 U.S. 614
(actual innocence means factual innocence, not mere legal
insufficiency). It is clear that the proof needed to
demonstrate a freestanding claim of actual innocence is
greater than that required to show the evidence was
insufficient to support his convictions. As noted above,
Stover falls short of showing insufficient evidence existed
to support his convictions for possession of methamphetamine
and simultaneous possession of drugs and firearms. It follows
that he also falls short of clearing the higher hurdle of
proving a freestanding claim of actual innocence.
summary, there is no merit to Stover's claim of actual
innocence, regardless of whether the claim is viewed as an
attack upon the sufficiency of the evidence adduced at trial
or whether the claim is a freestanding challenge to his
convictions for possession of methamphetamine.
Stover received constitutionally ineffective assistance of
counsel when his attorneys failed to properly challenge the
sufficiency of the evidence at trial by claiming the
prosecution failed to prove he possessed a usable amount of
argument is intertwined with the first claim raised by
Stover. In order to prove ineffective assistance of counsel,
Stover must prove that (1) his attorneys' actions were
unreasonable when viewed in the totality of the
circumstances; and (2) he was prejudiced because there is a
reasonable probability that, but for counsels'
unprofessional errors, the result of the trial would have
been different. Strickland v. Washington, 466 U.S.
688 (l983); Ryder v. Morris, 752 F.2d 327, 33l (8th
Cir. l985). Stover bears a heavy burden in overcoming "a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance."
Strickland, 466 U.S. at 689; Kellogg v.
Scurr, 74l F.2d l099, ll0l (8th Cir. l984); Bell v.
Lockhart, 74l F.2d ll05, ll06 (8th Cir. l984). This
presumption is created to "eliminate the distorting
effects of hindsight," and recognizes that "it is