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Flemons v. Kelley

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

November 16, 2018

AARON FLEMONS ADC # 119749 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 Billy Roy Wilson, 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 April 3, 2012, Petitioner was convicted of three counts of delivery of cocaine (Nos. CR-2011-491, CR-2011-493, and CR-2011-494) and delivery of a counterfeit substance (No. CR-2011-977) in Sebastian County Circuit Court. (DE # 9-2) On June 19, 2012, Petitioner was convicted in the same court of fleeing apprehension and leaving the scene of a personal injury accident. (DE # 9-3) Petitioner received 552 months in the Arkansas Department of Correction for the drug related charges and another 360 months, to run consecutively, for the fleeing charge.[1] Petitioner filed a direct appeal of his convictions. In appealing Nos. CR-2011, -493, -494, and -977 (the “drug cases”), he argued there was insufficient evidence to support his convictions, and the trial court erred in denying his motion in limine. (DE # 9-4) On April 17, 2013, the Arkansas Court of Appeals affirmed the conviction. Flemons v. State, 2013 Ark.App. 239. Petitioner appealed his conviction in No. CR-2011-987 (the “fleeing case”), contending that there was insufficient evidence to support his conviction. On May 1, 2013, the Arkansas Court of Appeals affirmed. Flemons v. State, 2013 Ark.App. 280.

         On June 26, 2013, Petitioner filed his petition for post-conviction relief of the drug cases, pursuant to Arkansas Rule of Criminal Procedure 37.1. (DE # 9-8) Petitioner filed an amended petition on November 15, 2013. (DE # 9-9) Petitioner also sought post-conviction relief of the judgement in the fleeing case. (DE # 9-10) On November 15, 2013, Petitioner amended that petition. (DE # 9-11) The trial court held a hearing on the consolidated Rule 37 petitions, and on March 6, 2014, issued an order denying Rule 37 relief. (DE # 9-12)

         Petitioner appealed the denial of Rule 37 relief to the Arkansas Supreme Court. On appeal, Petitioner made the following arguments in support of his Rule 37.1 petition: (1) trial court erred in denying his motion for continuance of the Rule 37 hearing; (2) trial court erred in denying his motion for appointment of counsel; (3) trial court erred by denying his motion for trial transcripts; (4) trial court erred by not finding ineffective assistance of counsel because he was prevented from a proper investigation of the claims raised in his Rule 37 petitions without the assistance of counsel; (5) he received ineffective assistance of counsel when his trial counsel failed to investigate the search procedures used on the confidential informant (“CI”); (6) he received ineffective assistance of counsel for his trial counsel's failure to raise an entrapment defense; (7) trial court erred “in regard to Ground 14;” (8) trial counsel was ineffective for failing to object to Petitioner appearing before the jury in restraints; (9) trial counsel was ineffective for failure to request a curative instruction regarding the restraints; (10) in the fleeing case, trial counsel was ineffective for failing to investigate a defense based on his mental health; (11) in the fleeing case, trial counsel was ineffective for failing to put on mitigating evidence at sentencing; and (11) Petitioner's appellate counsel, in the fleeing case, was ineffective for failing to challenge the sufficiency of the evidence on appeal. (DE # 9-13) The Arkansas Supreme Court affirmed the denial of post-conviction relief on December 15, 2016. Flemons v. State, 2016 Ark. 460.

         On July 21, 2017, Petitioner timely filed a petition for writ of habeas corpus (DE # 2), pursuant to 28 U.S.C. § 2254, claiming:

1. Ineffective assistance of counsel due to counsel's failure to effectively communicate the state's “global plea offer”;
2. Ineffective assistance of counsel for counsel's failure to properly investigate the delivery of cocaine charges in Nos. CR-2011-491, -493, and -494, including possible defenses and adequate preparation for trial;
3. Ineffective assistance of counsel for counsel's failure to raise due process violations for prosecutorial and law enforcement misconduct;
4. Ineffective assistance of counsel for counsel's failure to adequately challenge the admissibility of the CI's testimony;
5. Ineffective assistance of counsel for counsel's failure to challenge the admissibility of State's exhibits 10 and 16 which contained the drugs from the May 24th and 31st transactions; 6. Ineffective assistance of counsel for counsel's failure to request an entrapment instruction;
7. Ineffective assistance of counsel for counsel's failure to advise the court of a conflict of interest because trial counsel's ...

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