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Green v. Kelley

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

February 6, 2019

WENDY KELLEY, Director of the Arkansas Department of Correction RESPONDENT



         The following proposed Findings and Recommendation have been sent to United States District Judge D.P. Marshall 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 this Recommendation. By not objecting, you may waive the right to appeal questions of fact.


         I. STATE AND FEDERAL COURT PROCEEDINGS. The record reflects that petitioner Charles Green (“Green”) was tried in Mississippi County Circuit Court for the offense of murder. He did not deny shooting the victim but took the position at trial that the shooting was done in self-defense. The Arkansas Court of Appeals summarized some of the evidence touching on the issue of self-defense and did so as follows:

At trial, [Green] testified that the victim had a reputation of being a bully. [Green] said that on the day of the shooting he became frightened and did not know what to do because the victim told him, “I know where you at” and “I'm coming over there so you better be ready.” [Green] said he knew what the victim could and would do, and he had witnessed the victim “exert violence” and beat other people. At the time of the shooting, [Green] was making a telephone call from a pay phone. The victim's car approached and stopped four or five feet away. The victim got out of the car and approached [Green] while speaking in an angry tone. [Green] said that the victim kept walking toward him; that he could not back up; that he felt as if his life was in danger; that he pulled the gun; and that when the victim came into “reaching range” he shot him. [Green] testified further that he weighs about 178 pounds and his arm is partially paralyzed. He said that he meant to shoot the victim; that he fired six or seven shots; that the victim fell on his back after the second shot; and that he did not see any weapon on the victim.
There was other evidence regarding the victim's size and propensity for violence. Lanette Martin, the victim's girlfriend, testified that the victim was a violent person with a reputation for violence and for carrying a gun; that [Green] had witnessed the victim beating her during which she was punched, kicked and choked so that she became unconscious; that [Green] had witnessed the victim beating another woman with a chair; and that the victim had an argument on the phone with an unknown party on the night of the shooting. Pearlee Davis testified that the victim was “kind of like muscle built”; that he was a lot bigger than [Green], who had a withered arm; that [Green] left her house before the shooting because he believed the victim was coming after him; and that he was scared. Antonio Burks who witnessed the incident testified that the victim was a tall, stocky man, who was a lot taller, bigger, and stockier than [Green].

See Green v. State, __ Ark. __, __ S.W.2d ___, 1999 WL 714655, 1 (Ark.Ct.App. 1999). The jury was not persuaded and convicted him of first-degree murder. Green was sentenced to the custody of respondent Wendy Kelley (“Kelley”).

         Green appealed and raised one claim, i.e., “the trial court erred in ruling that it would allow the State to cross-examine a witness regarding certain prior bad acts of the witness and [Green].” See Id. at 2. The state Court of Appeals found no reversible error and affirmed Green's conviction on September 8, 1999. The records maintained by the appellate court clerk reflect that a mandate was issued on September 28, 1999.

         Green did not thereafter seek post-conviction relief or otherwise mount a collateral attack upon his conviction. Specifically, he never filed a petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37.

         On August 16, 2018, Green signed the petition at bar, one pursuant to 28 U.S.C. 2254. In it, he appeared to advance two claims. First, he maintained that he is actually innocent. Second, he maintained that the evidence was insufficient to support his conviction. The same assertion appeared to support both claims, i.e., the State failed to prove beyond a reasonable doubt that he purposefully killed the victim. Although Green did not specifically address the limitations question in his petition, he appeared to maintain that he only now filed his petition because it was not until November 16, 2017, that the Arkansas Supreme Court provided him with a copy of the trial transcript. See Green v. State, 2017 Ark. 319, __ S.W.3d __, 2017 WL 5493001 (Ark.S.Ct. 2017).

         Kelley filed a response to Green's petition. In the response, Kelley maintained that Green's petition is time-barred, and his challenge to the sufficiency of the evidence is procedurally barred from federal court review.

         Green thereafter filed a reply in which he maintained, inter alia, that if his petition is untimely, its untimeliness should be excused because he is actually innocent. He so maintained, in part, because he was erroneously required to prove self-defense.


         A state prisoner has one year during which he may file a petition pursuant to 28 U.S.C. 2254. If he does not file his petition within that one-year period, or if the untimely filing of his petition is not excused, the petition is barred. 28 U.S.C. 2244(d) provides ...

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