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Airsman v. Kelley

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

July 12, 2018

DON AIRSMAN, JR. ADC #154517 PETITIONER
v.
WENDY KELLEY, Director Arkansas Department of Correction RESPONDENT

          PROPOSED FINDINGS AND RECOMMENDATIONS

         INSTRUCTIONS

         The following recommended disposition has been sent to United States District Court Judge James M. Moody, Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

         If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.

         From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

         Mail your objections and “Statement of Necessity” to:

Clerk, United States District Court
Eastern District of Arkansas
600 West Capitol Avenue, Suite A149
Little Rock, AR 72201-3325

         DISPOSITION

         For the reasons explained below, it is recommended that Petitioner's Petition for Writ of Habeas Corpus (DE # 2) be DISMISSED with prejudice.

         Procedural History

         On March 28, 2013, Petitioner was found guilty of the first-degree murder of William Allen Jones, Jr. by a jury in Hempstead County, Arkansas. The Petitioner had been living in the home of Mr. Jones, his former stepfather, since his mother's death. (Tr. 1031) According to Petitioner's father, Donnie Airsman, Sr., he witnessed his son shoot Mr. Jones at Jones' residence, then load the body into the victim's vehicle, and drive the vehicle thirty to forty-five minutes out of town. (Tr. 1037- 1046) The victim's vehicle was found in Bowie County, Texas, fully engulfed in flames, and Mr. Jones' burnt body was recovered inside the vehicle. (Tr. 255) Petitioner was sentenced to life imprisonment plus a fifteen-year enhancement for use of a firearm in the commission of the murder of Mr. Jones. (DE #10-2) Petitioner filed a direct appeal of his conviction arguing that there was insufficient evidence to support his conviction; the circuit court erred by denying his motion to suppress his statements; and the court erred by denying his motion in limine to exclude certain photographs of the victim's burnt body. See Airsman v. State, 2014 Ark. 500 (2014). On December 4, 2014, the Arkansas Supreme Court affirmed Petitioner's conviction and sentence. Id.

         On February 9, 2015, Petitioner filed his pro se petition for post-conviction relief in the trial court, pursuant to Arkansas Rule of Criminal Procedure 37.1. (DE # 10-6, p. 52-57) Petitioner raised four claims for relief: (1) a juror, who failed to disclose his inappropriate contact with six deputies and Petitioner during a break in the trial, should have been removed from the jury; (2) the prosecution granted immunity to his father, Donnie Airsman, Sr., without notifying the trial judge; (3) the prosecutor improperly stated the investigation was ongoing pending trial; therefore, the trial court was never able to rule on Petitioner's self-defense claim prior to trial; and (4) the prosecution played only a portion of a video, purposely omitting a part that allegedly showed a “deal made by the prosecutor and a witness.” Id. The circuit court denied the petition, finding that the allegations fell “short of meeting the requirement of a valid collateral attack, ” and Petitioner was not entitled to a hearing based on the conclusory nature of his allegations. (DE # 10-6, p. 63-64).

         Petitioner appealed the denial of his Rule 37 relief to the Arkansas Supreme Court. On appeal, Petitioner made the following arguments in support of his Rule 37.1 petition: (1) failure of trial counsel to point out to the judge an incident that occurred between a juror and deputies during a break, and also when the trial court asked if anyone on the jury had been affected by anyone talking to them, a comment was made that “he, [Donnie Airsman], just whispered to the jury and said, self-defense;” (2) the prosecution did not play a recording properly, and his trial counsel failed to object to the prosecutor's misconduct; (3) several claims of prosecutorial misconduct and ineffective assistance of counsel because his counsel allowed the misconduct to occur; (4) conflict of interest with trial counsel due to counsel's interaction with Petitioner on a different case when Petitioner was a corrections officer in Miller County, Arkansas, that the Petitioner claims resulted in trial counsel refusing to let him testify on his behalf and put forth mitigating evidence; and (5) a “catch-all” argument that the jury was tainted by “numerous events that would have effected their ability to render a fair and impartial verdict based on the evidence.” (DE # 10-6) The Arkansas Supreme Court affirmed the denial of post-conviction relief on November 5, 2015. (DE # 10-8) Following that decision, Petitioner filed a second petition for post-conviction relief in the trial court, which was denied and dismissed. He sought a writ of mandamus requesting that the Arkansas Supreme Court direct the trial court “to file and sign documents concerning an appeal of the order denying and dismissing his second Rule 37.1 petition.” Petitioner's mandamus petition was denied. See Airsman v. State, 2016 Ark. 297.

         On October 14, 2016, Petitioner timely filed a petition for writ of habeas corpus (DE # 2), pursuant to 28 U.S.C. § 2254, asserting that he was denied a fair trial, received ineffective assistance of counsel, and has been subjected to cruel and unusual punishment on the following bases:

1. Donnie Airsman, Sr., a witness for the State and the defense, whispered to the jury during his testimony that the crime was self-defense;
2. Defense's exhibit #1 was tampered with by the prosecution to exclude the portion of the tape where a deal was made between the prosecutor and a witness;
3. Denial of Petitioner's right to testify;
4. No mitigating evidence was presented to ...

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