United States District Court, E.D. Arkansas, Pine Bluff Division
DOUGLAS D. TRUE PETITIONER
WENDY KELLEY RESPONDENT
FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to United States District Judge Billy Roy Wilson. 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
STATE COURT PROCEEDINGS. The record reflects that petitioner
Douglas D. True (“True”) was charged in an
Arkansas state trial court with two counts of capital murder
following the death of his pregnant girlfriend. He eventually
pleaded guilty to both counts and was sentenced to concurrent
terms of life imprisonment without parole. He did not appeal
any aspect of his plea or sentence.
thereafter filed a pro se petition for
post-conviction relief pursuant to Arkansas Rule of Criminal
Procedure 37.1. The Arkansas Supreme Court summarized the
claims in his petition as follows:
... counsel failed to fully investigate and develop a theory
of defense and instead pressured [True] to plead guilty to
capital murder to avoid the imposition of the death penalty;
... counsel failed to order a mental evaluation; and ...
[True's] guilty plea was involuntary in that, at the time
the plea was entered, counsel did not inform [True] that the
prosecutor had not yet given notice of intent to seek the
death penalty. ...
See True v. State, 2017 Ark. 323, 532 S.W.3d 70, 72
(2017). The state trial court appointed counsel and obtained
an evaluation of True's mental state. See Docket
Entry 8, Exhibit F. The results of the evaluation reflect
that he understood the proceedings against him, had the
capacity assist in his defense, did not manifest symptoms of
a mental disease or defect, and did not lack the capacity to
appreciate the criminality of his conduct or conform his
conduct to the requirements of the law. He was, though,
diagnosed with an anti-social personality disorder and an
alcohol-abuse disorder. The evaluation also contained a
summary of the prosecution's account of the facts; the
state Supreme Court recounted the summary as follows:
... the victim was five to six months pregnant at the time of
her death; ... True called 911 and stated that “he had
done something bad that he didn't remember;” ...
True admitted to investigators that he and the victim had an
argument on the night of the murder that had escalated into a
physical altercation but that he did not recall any other
events that occurred; and ... True told investigators that he
was not aware that anyone else was in the residence on the
night of the murders.
See Id., 532 S.W.3d at 72. The state trial court
conducted an evidentiary hearing during which True testified.
The state Supreme Court summarized True's testimony as
True testified that due to intoxication, he had
“blacked out” and had no memory of murdering his
girlfriend. True admitted it was possible that he was the
perpetrator but insisted that he had never harmed anyone
when he had previously “blacked out” due to
intoxication. True insisted that he pleaded guilty solely to
avoid the death penalty. On cross-examination, True admitted
that the evidence showed that his girlfriend had been stabbed
eleven times and had been beaten about the face and body.
See Id. at 73. The state trial court denied
True's petition for post-conviction relief. The state
Supreme Court summarized the state trial court's reasons
for doing so as follows:
... (1) trial counsel had reasonably investigated the facts
and circumstances surrounding True's case; (2) that
counsel's failure to make further investigation regarding
True's mental-health history was not prejudicial; and (3)
that it could not find that trial counsel was ineffective or
that [True] was unwise for considering the possibility of a
death sentence as an incentive for pleading guilty.
See Id. True appealed the denial of his petition.
The state Supreme Court found no reversible error and
affirmed the denial of his petition.
FEDERAL COURT PLEADINGS. True then began the case at bar by
filing a petition for writ of habeas corpus pursuant to 28
U.S.C. 2254. In the petition, he advanced the following four
claims for relief:
1) counsel was constitutionally inadequate because he failed
to conduct a thorough pre-trial investigation and formulate a
2) counsel was constitutionally inadequate because he failed
to request a pre-trial mental evaluation and obtain a
determination of True's mental competency;
3) counsel was constitutionally inadequate because he failed
to discover and produce exculpatory evidence; and
4) True did not enter a knowing, voluntary, and intelligent
plea of guilty because he was denied his Sixth Amendment
right to effective assistance of counsel
Wendy Kelley (“Kelley”) filed a response to
True's petition. In the response, Kelley asked that the
petition be dismissed. With respect to claims one, two, and
four, Kelley maintained that the state Supreme Court
reasonably adjudicated the claims in resolving True's
petition for post-conviction relief, and the adjudication
should be granted deference. With respect to claim three,
Kelley maintained that the claim is procedurally barred from
federal court review.
filed a lengthy reply. In it, he maintained that the state
Supreme Court's adjudication of his claims should not be
accorded any deference for two reasons. First, the
adjudication resulted in a decision that was contrary to, or
an unreasonable application of, clearly established federal
law as determined by the United States Supreme Court.
Alternatively, the adjudication resulted in a decision that
was based on an unreasonable determination of the facts in
light of the evidence presented. With respect to Kelley's
assertion of a procedural bar, True maintained that he could
not have raised his third claim in state court because he did
not have access to a copy of the case file and was therefore
unaware of the claim.
TRUE'S FIRST CLAIM.
first claim involves a challenge to his trial attorney's
representation. True maintains that counsel failed to conduct
a thorough pre-trial investigation and formulate a viable
defense. For instance, True maintains that, inter
alia, counsel failed to compare True's hand and foot
prints to the prints recovered at the crime scene; failed to
discover that True's DNA was not found on the alleged
murder weapon; failed to document True's history of
mental illness; failed to adequately investigate True's
social background or interview his friends and associates;
failed to locate and interview Zoe Moores, a/k/a
“Bubbles, ” the last person to have spoken with
True prior to the murders; and failed to adequately
investigate True's educational background.
claim is governed by Strickland v. Washington, 466
U.S. 668 (1984), which requires a two-part inquiry. First,
the petitioner must show that counsel's performance was
deficient, i.e., the petitioner must show that
counsel's representation fell below an objective standard
of reasonableness. See Slocum v. Kelley, 854 F.3d
524 (8th Cir. 2017). Second, the petitioner must
show prejudice, i.e., a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different. See Id. In
the context of a guilty plea, the petitioner must show a
reasonable probability that, but for counsel's errors,
the petitioner would not have pleaded guilty but would have
insisted on going to trial. See Hill v. Lockhart,
474 U.S. 52 (1985). The likelihood of a different result must
be substantial, not just conceivable, see Slocum v.
Kelley, 854 F.3d at 532, and “there is a strong
presumption that counsel's conduct falls within the wide
range of professionally reasonable assistance and sound trial
strategy, ” see Amrine v. Bowersox, 238 F.3d
1023, 1030 (8th Cir. 2001).
claim is also governed by 28 U.S.C. 2254(d), which requires
its own two-part inquiry. First, it requires an inquiry into
whether the state Supreme Court's adjudication of the
claim resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
federal law as determined by the United States Supreme Court.
Second, 28 U.S.C. 2254(d) requires an inquiry into whether
the adjudication resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented. Taken together with Strickland v.
Washington, 28 U.S.C. 2254(d) establishes a doubly
deferential standard of review. See Williams v.
Roper, 695 F.3d 825 (8th Cir. 2012).
testified during the evidentiary hearing about the
investigative efforts he undertook in attempting to formulate
a viable defense. See Docket Entry 8, Exhibit D at
CM/ECF 94-118. ...