Frazier v. Kelley

          PROPOSED FINDINGS AND RECOMMENDATIONS

         INSTRUCTIONS

         The 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.

         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 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.

         On May 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)

         Petitioner 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.

         On 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 ...