True v. Kelley

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The 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 fact.

         DISPOSITION

         I. 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.

         True 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 follows:

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.

         II. 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 viable defense;

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

         Respondent 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.

         True 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.

         III. TRUE'S FIRST CLAIM.

         True's 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.

         True's 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 (8^th 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).

         True's 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).

         Counsel 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. ...