United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS
following recommended disposition has been sent to United
States District Court Judge J. Leon Holmes. 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.
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
1. Why the record made before the Magistrate Judge is
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.
this submission, the District Judge will determine the
necessity for an additional evidentiary hearing, either
before the Magistrate Judge or before the District Judge.
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
reasons explained below, it is recommended that
Petitioner's Petition for Writ of Habeas Corpus (DE # 2)
be DISMISSED with prejudice.
April 23, 2013, Petitioner was found guilty of attempted
first-degree murder, aggravated assault, and being a felon in
possession of a firearm by a jury in Union County, Arkansas.
(DE # 8-2) He was sentenced to 852 months' imprisonment
in the Arkansas Department of Correction. Id. The
charges arose from a heated argument the Petitioner had with
his friend, Mark Watts, over money. The argument resulted in
Petitioner firing multiple shots at Watts in the presence of
Watts' wife, Sharon Watts. See Frazier v. State,
2014 Ark.App. 191. Petitioner filed a direct appeal of his
conviction, arguing that there was insufficient evidence to
support his conviction for the aggravated assault of Sharon
Watts. Id. Petitioner did not challenge his
convictions for attempted first-degree murder or being a
felon in possession of a firearm. On March 19, 2014, the
Arkansas Court of Appeals affirmed his conviction for
aggravated assault. Id.
5, 2014, Petitioner filed his pro se petition for
post-conviction relief in the trial court, pursuant to
Arkansas Rule of Criminal Procedure 37.1. (DE # 8-3)
Petitioner raised three claims for relief: (1) defense
counsel failed to conduct proper pretrial investigation and
thereby failed to properly cross-examine state witnesses; (2)
defense counsel was ineffective for his indifference to
“advocate for the best interests of Petitioner on all
charges;” and (3) defense counsel was ineffective for
failing to have a juror removed who was the cousin of a
detective that testified at trial. Id. On February
24, 2015, the trial court denied the petition, finding it was
without merit. (DE # 8-5)
appealed the denial of his Rule 37 relief to the Arkansas
Supreme Court. (DE # 8-6) On appeal, Petitioner made the
following arguments in support of his Rule 37.1 petition: (1)
ineffective assistance of counsel claims for (a) failing to
strike a juror who was related to witness, (b) filing an
“inadequate” brief on direct appeal by not
challenging the credibility of Sharon Watts, (c) failing to
make a Brady v. Maryland, 373 U.S. 83 (1963)
objection, and (d) failing to conduct an adequate
investigation and cross-examination of Mark and Sharon Watts;
and (2) the trial court's order denying post-conviction
relief did not comply with the requirements of Arkansas Rule
of Criminal Procedure 37.3(a) because it is “devoid of
proper findings of fact and conclusions of law.”
Id. The Arkansas Supreme Court affirmed the denial
of post-conviction relief on February 11, 2016. See
Frazier v. State, 2016 Ark. 55.
November 10, 2016, Petitioner timely filed a petition for
writ of habeas corpus (DE # 2), pursuant to 28 U.S.C. §
2254, asserting the following:
1.) the trial court erred in denying Petitioner's motion
for directed verdict on the count of aggravated ...