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Pigg v. Kelley

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

May 30, 2018

WENDY KELLEY, Director, Arkansas Department of Corrections RESPONDENT


         The following Recommended Disposition (“Recommendation”) has been sent to United States District 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 within fourteen (14) days of the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.

         I. Background

         Pending before the Court is a § 2254 Petition for a Writ of Habeas Corpus filed by Petitioner, Earl Delmar Pigg (“Pigg”). Doc. 2. Before addressing Pigg's habeas claims, the Court will review the procedural history of the case in state court.

         On August 8, 2012, a jury convicted Pigg of eleven counts of rape and one count of interference with custody. The trial court imposed the jury recommended sentence of life on each count of rape and ten years on the interference conviction, with all sentences to run consecutively.

         In Pigg's direct appeal, he contended that the trial court erred in: (1) denying his motion to admit evidence that A.S., [1] Pigg's primary victim, had a sexual relationship with her former youth minister, Dalton Smith (“Smith”), which created an alleged motive to falsely accuse Pigg;[2] and (2) sustaining the State's objection to Pigg offering hearsay testimony that he overheard one of the victims coaching a five year old to make false allegations against Pigg's daughter.

         On October 23, 2014, the Arkansas Supreme Court rejected both of Pigg's arguments and affirmed his convictions. Pigg v. State, 2014 Ark. 433 (“Pigg I”). In doing so, the Court held that: (1) any error in excluding the testimony Pigg argued would have revealed A.S.'s alleged motivation to “falsely” accuse him was harmless because the evidence of his guilt was “so overwhelming;” and (2) Pigg's hearsay argument was not preserved for appellate review. Id. at *5.

         Proceeding pro se, Pigg sought postconviction relief in the state circuit court under Rule 37 of the Arkansas Rules of Civil Procedure. In his Rule 37 Petition and supplemented Petition, Pigg alleged four categories of error.

         First, he contended that his trial counsel was constitutionally ineffective for:

(1) failing to file the proper motions, including relief under Arkansas's rape shield statute, to permit adequate cross-examination of the victims and witnesses to expose their motive in “falsely” accusing him of criminal misconduct;[3]
(2) failing to investigate and subpoena potential witnesses, [4] who would have testified to his character and corroborated his theory that the victims and their families conspired to make false charges against him;[5]
(3) failing to conduct an adequate or thorough investigation of the relevant facts, filing inadequate pretrial motions, and failing to properly conduct the guilt and penalty phases of the trial;[6]
(4) conspiring with detectives and the prosecution to convict him by various means, including tampering with and destroying evidence;[7]
(5) failing to present medical records of his erectile dysfunction and character evidence of his good employment habits during the penalty phase of his trial;
(6) failing to request lesser-included jury instructions and failing to preserve for appellate review issues of sufficiency of the evidence to support those instructions;
(7) failing to file the proper motions or make the proper objections to exclude the 404(b) testimony of Pigg's niece, Meghan Lynn Pigg;
(8) failing to move for a mistrial on Pigg's allegation that Detective Johnathan Wear spoke to jurors during the trial;
(9) failing to move for a change of venue;
(10) failing to request an evidentiary hearing and attending hearings without Pigg being present;
(11) failing to challenge the evidence, including inconsistencies in victim and witness testimony and the lack of any physical evidence;
(12) failing to file and argue a motion to present testimony that one of the victims tried to coach a five-year old to make false statements against Pigg's daughter in 2010;
(13) failing to seek a change of venue and to file a motion for mistrial based on alleged statements made by witnesses and victims in the presence of five jury members; and
(14) failing to discover evidence of other medical causes of one victim's injuries or to object to testimony “bolstering” the victim's credibility.

         Second, Pigg alleged that authorities failed to “disclose numerous police reports” involving complaints Piggs had previously made against the victims and their families, in violation of Brady v. Maryland, 373 U.S. 83 (1963).

         Third, Pigg asserted a “cumulative error” claim and also argued that that the prosecution failed to disclose that State's witnesses “told numerous lies” during the investigation “under relentless coercion [from the prosecution] . . . .” Doc. 10-10, Tr. at 60, 83-84.

         Finally, Pigg asserted a “newly discovered” evidence claim, supported by affidavits from three witnesses suggesting that youth minister Dalton Smith conspired with the victims to have Pigg falsely charged and convicted in retaliation for Pigg reporting Smith's sexual relationship with A.S. Id., Tr. at 84-85.[8]

         On March 18, 2015, the trial court held a hearing on Pigg's Rule 37 Petition. Doc. 10-12 at 2-137. Three witnesses testified: (1) Pigg; (2) Pigg's trial counsel, William L. Griggs, IV (“Attorney Griggs”);[9] and (3) Detective Johnathan Wear. On March 19, 2015, the trial court entered an Order denying all of the claims asserted by Pigg in his Rule 37 Petition. Doc. 10-10, pp. 111-115.

         In his pro se appeal to the Arkansas Supreme Court, Pigg pursued only three of the many Rule 37 claims he made before the trial court: (1) his attorney was ineffective in investigating the facts of the case and developing potential defense witness testimony from Sammy Ferris, Kenneth Crowley, Michael Hopewill and Skylar Sparks;[10] (2) his attorney was ineffective in failing to exclude evidence based on Ark. R. Evid. 404(b); and (3) his attorney was ineffective in failing to present available erectile dysfunction evidence during the penalty phase of the trial. In his appeal brief, Pigg acknowledged that he was abandoning his ineffective assistance of counsel claims based on his attorney allegedly failing to request a hearing under the rape shield statute[11] and allegedly conspiring with the prosecution and detectives.[12] Doc. 10-14, at p. 8, 31-36, 103.

         On March 10, 2016, the Arkansas Supreme Court affirmed the denial of Rule 37 relief. Pigg v. State, 2016 Ark. 108 (“Pigg II”); see also Doc. 10-15.

         On July 11, 2016, Pigg initiated this § 2254 action. Doc. 2. On September 30, 2016, the Respondent filed her Response. Doc. 10. On January 3, 2017, Pigg filed a 103 page Reply Brief and 700 pages of supporting exhibits that significantly enlarged the claims he asserted in his initial habeas Petition.[13] Docs. 16 & 17. Importantly, in his Reply Brief, Pigg states that “all” of his asserted grounds for habeas relief are now based on “ineffectiveness of trial counsel.” Doc. 16 at 5. Accordingly, the Court has construed Pigg's habeas Petition and Reply Brief as asserting only various species of ineffective assistance claims against his trial counsel, Attorney Griggs.

         While the Court is required to construe Pigg's habeas Petition liberally, this does not relieve Pigg of the burden of “stat[ing] the facts supporting each ground” for habeas relief. See Rule 2(c)(2) of the Rules Governing Section 2254 Cases in the United States District Courts; Jones v. Jerrison, 20 F.3d 848, 853 (8th Cir. 1994). Thus, as a matter of law, the Court is not required to consider any of Pigg's entirely conclusory habeas claims, which are not supported by any facts or law.[14] Miller v. Kemna, 207 F.3d 1096, 1097 (8th Cir. 2000) (pro se petition was not construed to recognize an unarticulated argument); Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993) (pro se petition consisting of highlighted passages or scribbled notes in margins of judicial opinions not construed as substitute for petition actually alleging legal arguments).

         To facilitate its discussion of Pigg's cognizable ineffective assistance of counsel claims, the Court has grouped those claims as follows:

Claim 1 - Trial counsel was ineffective for failing to investigate and present evidence to support Pigg's theory that the victims and their families framed Pigg in retaliation for his role in reporting Dalton Smith's sexual assault of A.S.;
Claim 2 - Trial counsel was ineffective for failing to investigate, discover witnesses, and present evidence to support Pigg's claim that the States' witnesses had other motivations to testify against him (other than the Dalton Smith retaliation theory);
Claim 3 - Trial counsel was ineffective for failing to admit medical evidence and testimony regarding Pigg's erectile dysfunction;
Claim 4 - Trial counsel was ineffective for failing to exclude the testimony of Meghan and Loral Pigg under Rule 404(b) of the Arkansas Rules of Evidence and to move for a mistrial;
Claim 5- Trial counsel was ineffective for failing to conduct a constitutionally inadequate cross-examination of the State's witnesses;[15]
Claim 6- Trial counsel was ineffective for failing to object to the State's witnesses on direct examination and the State's closing argument;
Claim 7- Trial counsel was ineffective for failing to file a motion to suppress evidence from a search of Pigg's cell phone;
Claim 8 - Trial counsel was ineffective for failing to move to suppress the statements Pigg made to Detective Wear;
Claim 9 - Trial counsel was ineffective for failing to request jury instructions on lesser included offenses and to preserve that issue.[16]
Claim 10 - Trial counsel was ineffective for allowing the rape charges and the interference with custody charges to be consolidated and resolved in one trial.[17]

Docs. 2, 17.

         Respondent argues that all of Pigg's habeas claims should be dismissed, with prejudice, because they are either procedurally defaulted, or without merit. Doc. 10. For the reasons discussed below, the Court agrees and recommends that all of Pigg's claims be denied and the case dismissed, with prejudice.

         II. Discussion

         A. The Trial Court Record Contained “Overwhelming” Evidence of Pigg's Guilt

         On direct appeal, the Arkansas Supreme Court reviewed the trial record and concluded that it contained “overwhelming” evidence of Pigg's guilt:

According to the evidence presented at trial, A.S., a female minor, was the victim of ten counts of rape, while W.S., her younger sister, was the victim of a single count of rape. Both girls were friends of Pigg's daughter. At trial, the testimony revealed that Pigg engaged in a five-or six-year sexual relationship with A.S. and that he digitally penetrated W.S. on several occasions.
. . . We need not decide whether the circuit court erred because any error in the exclusion of the testimony was harmless, given the overwhelming evidence of guilt. A.S.'s testimony, in detail, revealed that Pigg had sexual relations with her for five to six years beginning when she was eleven years old. Pigg's daughter and W.S. witnessed some of the sexual activity, which they described in their testimony. In addition, expert testimony disclosed that A.S. had a deep notch in her hymen, which was suggestive of sexual abuse or penetrating trauma. Moreover, the jury heard the testimony of Pigg's niece who said that Pigg had molested her when she was eight years old. Even when a circuit court errs in making an evidentiary decision, we may declare the error harmless and affirm if the evidence of guilt is overwhelming and the error is slight. [citation omitted] We conclude that the evidence of guilt in this case is so overwhelming that any error in the exclusion of the proposed testimony is harmless.

Pigg I, 2015 Ark.App. 572, *2-*5.

         A year later, in affirming the trial court's denial of Rule 37 relief, the Arkansas Supreme Court provided an even more detailed discussion of the “overwhelming” evidence that supported Pigg's guilt:

The evidence at Pigg's trial included testimony from A.S. and her younger sister, W.S., who were friends with Pigg's daughter. A.S. testified that she had an ongoing sexual relationship with Pigg that began when she was eleven or twelve. A.S. testified that Pigg proposed marriage and gave her a ring on a trip to Fayetteville that she took with Pigg, Pigg's daughter, and W.S. W.S. and Pigg's daughter both testified to having witnessed the marriage proposal and to having previously witnessed oral sex between Pigg and A.S. W.S. testified that she had been digitally penetrated by Pigg. Pigg's daughter's mother also described the relationship between Pigg and A.S., and, consistently with the girls' testimony, she stated that she had noticed inappropriate behavior between the two that was indicative of a sexual relationship. She testified that Pigg had demanded that she begin sleeping in a guest room so that A.S. could sleep with Pigg.
An investigating detective, Jonathan Wear, testified that A.S. was wearing a ring that she said Pigg had given her, and the ring was introduced into evidence. Wear also testified that Pigg had fled on his motorcycle when Wear and another officer tried to arrest him, that Pigg crashed the motorcycle, and that a phone was confiscated at the crash scene. The phone had numerous pictures of A.S., texts with A.S., and a video of A.S. dancing that were all introduced into evidence.
One of the girls' friends testified that she had accompanied Pigg and A.S. on a trip to Branson, Missouri, where she observed A.S. holding hands with Pigg and A.S. dancing in the video. The friend testified that they had told A.S.'s grandmother, who was A.S.'s guardian, that they were going to visit an aunt of the friend because A.S. was not supposed to be with Pigg. They had taken a picture with a stranger to aid in this deception. Her description of the trip was consistent with the other witnesses' testimony.
In addition, there was expert testimony that A.S. had physical signs suggesting sexual abuse, and testimony from Pigg's niece that Pigg had molested her when she was eight years old.

Pigg II, 2016 Ark. 108, *5-6.

         In order to prevail on his ineffective assistance of counsel claims, Pigg must establish that, but for his attorney's error, there is a reasonable probability that the result of the criminal proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Because the prosecution presented overwhelming evidence of Pigg's guilt, this creates a serious threshold problem for Pigg in trying to maintain the viability of his ineffective assistance of counsel claims.

         B. Legal Standards Applicable to Pigg's Habeas Claims

         1. Deferential Standard of Review Governing Pigg's Claims That Were Fully Adjudicated on the Merits in State Court

         A doubly deferential standard of review, imposed by 28 U.S.C. § 2254(d), [18] controls this Court's merits review of habeas claims that were fully adjudicated by the state courts of Arkansas.[19] Claim 1, Claim 2 (in part), Claim 3 (in part), and Claim 4 were fully adjudicated on the merits in Arkansas state court.

         In ruling on those claims, the Arkansas Supreme Court correctly identified the controlling legal standard in Strickland v. Washington, 466 U.S. 668, 687 (1984) and properly applied it to deny Pigg post-conviction relief. Pigg v. State, 2016 Ark. 108, *3. For Pigg now to obtain habeas relief on those claims, he must demonstrate that the Arkansas Supreme Court's application of the Strickland standard was “unreasonable, @ i.e., its decision was Aso lacking in justification that there was an error well ...

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