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Rasul v. Kelley

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

August 14, 2018

WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT


         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge James M. Moody, Jr. 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, Naeem Rasul (“Rasul”). Doc. 1. Before addressing Rasul's habeas claims, the Court will review the procedural history of the case in state court.

         On September 24, 2008, a jury convicted Rasul of second degree murder[1] for killing twenty-four year old Henry Onukwube (“Onukwube”) on the afternoon of October 20, 2007, near a basketball court in Pettaway Park in Little Rock. State of Arkansas v. Naeem Rasul, Pulaski County Circuit Court Case No. 60CR-07-4870 (“state criminal case”).[2] Rasul was sentenced to 20 years for second degree murder, plus an additional 15 years for using a firearm, with the sentences to run concurrently. Docs. 11-1; 11-3.

         In his direct appeal, Rasul's sole argument was that the State failed to sufficiently negate his justification defense.[3] Doc. 11-2 at p. 83. On September 30, 2009, the Arkansas Court of Appeals affirmed the conviction, without addressing Rasul's argument on the merits. Rasul v. State, 2009 Ark.App. 631 (“Rasul I”); Doc. 11-3 (copy of opinion). Instead, the Court held that Rasul's justification argument was not preserved for review because his trial counsel limited his first directed verdict motion to the first-degree murder charge and failed to argue the State had not proven the second degree murder charge.[4] Thus, “Rasul waived his sufficiency challenge to his conviction of a lesser-included offense.” Doc. 11-3 at p. 4; Rasul I, 2009 Ark.App. 631, *2.

         On February 1, 2010, Rasul timely filed a Rule 37 petition, which he later amended to raise six additional claims of ineffective assistance of counsel and one claim of trial error based on an allegedly erroneous trial court evidentiary ruling.

         On October 7, 2013, Judge Wright conducted a Rule 37 hearing on Rasul's original Petition, filed pro se, and his amended Petition, which was drafted with the assistance of his recently retained counsel, John Wesley Hall, who also represented Rasul during the Rule 37 hearing. On November 13, 2013, Judge Wright entered Findings of Fact and Conclusions of Law denying Rule 37 relief. Doc. 11-4 at pp. 32-38.

         Rasul appealed two of his postconviction claims to the Arkansas Supreme Court. He argued his trial counsel, Mr. Rolfe, was ineffective for: (1) failing to object to the jury instruction on justification being limited to the first degree murder charge; and (2) failing to call an expert witness to testify about PCP's effect on Onukwube, to further support Rasul's justification defense.[5]

         On March 19, 2015, the Arkansas Supreme Court affirmed the denial of Rule 37 relief. Rasul v. State, 2015 Ark. 118 (“Rasul II”); see also Doc. 11-6.

         On February 12, 2016, Rasul initiated this § 2254 action claiming that his trial counsel was ineffective for:

1. Failing to obtain a jury instruction on self-defense/justification on the second degree murder charge;
2. Failing to present testimony and other evidence regarding the victim's death threats against Rasul made shortly before the crime;
3. Failing to present expert testimony on the effect of PCP on an individual, to support the impact of Dr. Frank Peritti's testimony that the victim had a high level of PCP in his system;
4. Failing to make a proper record and “federalize” the argument that the trial court erroneously sustained the State's hearsay objection when Rasul offered evidence of excited utterances he made to police when he first encountered them during the early morning hours of October 20, 2017;
5. Failing to object or properly cross-examine the State's crime scene investigator regarding the location of the spent cartridges and the direction of the gunshots;
6. Failing to investigate and develop a theory of defense that one or more of the victim's friends picked up and removed the victim's gun from the scene of the shooting; and
7. Failing to ensure that the victim's hand were tested to determine the presence of gunshot residue.

         Finally, Rasul asserts his constitutional rights were violated when the State destroyed exculpatory evidence, in bad faith, when it failed to have Onukwube's hands tested for gunshot residue.

         Respondent argues that all of Rasul's habeas claims fail on one or more of the following grounds: (1) he procedurally defaulted some of his claims by failing to properly raise them in state court; (2) some of his claims were reasonably adjudicated by the state courts; and (3) some of his claims lack merit. Doc. 5. Rasul has filed a Reply. Doc. 18. Thus, the issues are joined and ready for resolution.

         For the reasons discussed below, the Court recommends that the Petition for a Writ of Habeas Corpus be denied, and that the case be dismissed, with prejudice.

         II. Discussion

         A. Evidence of Guilt

         The Rasul II court summarized the evidence supporting Rasul's conviction:

The record of trial reflects that appellant and Onukwube were involved in an altercation in the early morning hours on the day the homicide took place. In this incident, appellant struck Onukwube on the head with a pistol, leaving a wound that required stitches. According to appellant's testimony at trial, later that morning Onukwube damaged the door of a home owned by appellant's mother on Vance Street, and Onukwube also hurled a brick through the window of appellant's vehicle that was parked there.
That same afternoon, appellant was driving in a truck with his brother down Twenty-First Street on his way back to his mother's home after purchasing soft drinks at a store. Appellant testified that, as he was passing by the park, he saw Onukwube near a picnic table, and he said that Onukwube retrieved a handgun from his pocket and waved the gun around in a taunting manner. Appellant stated that, fearing for his life and that of his brother and also believing that he could not escape with safety, he stopped the truck, exited, and began shooting his .45-caliber semiautomatic pistol at Onukwube. Although appellant testified that he did not know that his brother had also exited the truck, a witness, Arlin Cheeter, testified that both men emerged in tandem from the truck after it came to an abrupt stop and that both of them immediately began firing their handguns at Onukwube, who ran in the opposite direction. Cheeter also testified that, when the truck passed by the park, Onukwube had “dropped back” and reached under his shirt, as if Onukwube had a weapon. Cheeter said, however, that he did not see Onukwube with a gun, and he denied that he confiscated any weapon from Onukwube after the shooting.
Carlos Chambers was also in the park with Onukwube. He testified that he ran and then hit the ground so as not to be struck by the gunfire. Chambers said that he looked back and saw the men from the truck chasing Onukwube until Onukwube fell onto the basketball court. He testified that he did not see Onukwube with a gun and that he did not see Onukwube do anything with his hand when the truck came to a stop. Chambers said that the men walked away after Onukwube fell.
The police found Onukwube's body lying on a basketball court. They did not locate a handgun in the vicinity of the corpse or elsewhere in the park. In a small confined area, investigators recovered six .45-caliber bullet casings and ten nine-millimeter bullet casings in a linear pattern from the street heading north toward the basketball court.1 Officers also located several bullet strikes in the ground and a projectile on the basketball court. According to the testimony, the direction of fire appeared to be from the south to the north. Despite searching with a metal detector, the officers were not able to find any physical evidence indicating that there were any shots fired, other than those from the south to the north toward the basketball court. There was also no evidence that a weapon other than a nine-millimeter or .45-caliber was used that day. Officers recovered a .45-caliber Glock semiautomatic pistol and a nine-millimeter Ruger semi-automatic pistol from the home of appellant's father. Ballistic testing revealed that the shell casings discovered at the scene were fired from those two guns.
Cameron Menzes testified for the defense and said that his brother, Cheeter, told him that Onukwube had a gun at the park. He said that he did not provide the police with this ...

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