United States District Court, E.D. Arkansas, Pine Bluff Division
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.
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.
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.
Pigg's direct appeal, he contended that the trial court
erred in: (1) denying his motion to admit evidence that A.S.,
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; 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.
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.
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.
he contended that his trial counsel was constitutionally
(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
(2) failing to investigate and subpoena potential witnesses,
would have testified to his character and corroborated his
theory that the victims and their families conspired to make
false charges against him;
(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;
(4) conspiring with detectives and the prosecution to convict
him by various means, including tampering with and destroying
(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
(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.
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).
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,
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
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”); 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.
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; (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 and allegedly
conspiring with the prosecution and detectives. Doc.
10-14, at p. 8, 31-36, 103.
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.
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. 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.
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. 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
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
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
Claim 5- Trial counsel was ineffective for failing to conduct
a constitutionally inadequate cross-examination of the
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
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.
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.
Docs. 2, 17.
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.
The Trial Court Record Contained “Overwhelming”
Evidence of Pigg's Guilt
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.
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
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'
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.
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.
Legal Standards Applicable to Pigg's Habeas
Deferential Standard of Review Governing Pigg's Claims
That Were Fully Adjudicated on the Merits in State
doubly deferential standard of review, imposed by 28 U.S.C.
§ 2254(d),  controls this Court's merits review
of habeas claims that were fully adjudicated by the state
courts of Arkansas. Claim 1, Claim 2 (in part), Claim 3 (in
part), and Claim 4 were fully adjudicated on the merits in
Arkansas state court.
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 ...