United States District Court, E.D. Arkansas, Pine Bluff Division
FINDINGS AND RECOMMENDATION
INSTRUCTIONS
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.
DISPOSITION
I.
STATE COURT PROCEEDINGS. The record reflects that petitioner
Robert Friar (“Friar”) was charged with multiple
felonies in Jackson County Circuit Court. The facts giving
rise to the charges were summarized as follows by the
Arkansas Supreme Court:
... Delana Aguirre and her children lived in a duplex in the
Crossroads area of Newport, Arkansas, with her sister and her
mother, Leslie Curl. During the early morning hours of
February 27, 2013, Friar fired seven shots from outside the
home through the window of Aguirre's bedroom where she
had retired for the evening with two of her children. Aguirre
survived three gunshot wounds-one to her back, one to her
buttocks, and another to her arm. Unfortunately,
Aguirre's twenty-month-old daughter, Tacquari, perished
after being struck by a single bullet. Aguirre's other
child was unharmed.
According to the testimony, Friar and Aguirre had been dating
for seven months, and the relationship had become volatile.
Aguirre testified that Friar had physically abused her,
saying that he had choked her, had struck her with a closed
fist, and once had hit her with a belt buckle. She also
testified that Friar had threatened her life and the lives of
her children and her mother. On the evening of the shooting,
Friar sent Aguirre an ominous text message saying, “YEA
I WILL HAVE THE LAST SAY SO U N UR MOM TELL D KIDS U LOVE
THEM.” At 2:32 a.m., mere seconds before the shots rang
out, Friar placed a cellular phone call to Aguirre, wherein
he said something that she could not understand, and then
disconnected the call. Aguirre testified that she was sitting
on her bed smoking a cigarette when Friar called and that the
light from her phone was shining in the direction of the
window.
The testimony also established that Friar was in close
proximity to Aguirre's home at the time of the shooting.
Friar lived with his mother near Garfield Street, which was
at least a couple of miles from Aguirre's residence.
However, that morning he had been riding in a vehicle with
Bobbie Woodruff, who parked beside her aunt's house,
which was near Aguirre's duplex. Bobbie testified that
Friar got out of the vehicle to relieve himself; that he did
not return to the vehicle; and that she picked him up a short
while later around the comer from where she had parked. The
evidence showed that Friar and Woodruff exchanged text
messages and phone calls within minutes of the shooting and
before they reconnected.
Officers arrested Friar that morning at 4:12 a.m. on Garfield
Street and transported him to the Jackson County
Sheriff's Office. During the booking process, officers
seized Friar's clothing and his cell phone. At that time,
Friar was heard to say, “Baby mama drama. It is what it
is.” That morning, agents of the Arkansas State Police
attempted to question Friar, but Friar refused to speak with
them. However, later that morning, Friar gave a statement to
an officer with the Newport Police Department, and the agents
from the state police subsequently interviewed Friar twice
that same day. In his three statements, Friar denied that he
had been involved in the shooting.
See Friar v. State, 2016 Ark. 245, 2016 WL 3346565,
1-2 (2016). Friar was subsequently convicted of the charges
and sentenced to the custody of respondent Wendy Kelley
(“Kelley”).
Friar
appealed his conviction and raised three claims. First, he
maintained that the state trial court erred when it denied
his motion to suppress. The state Supreme Court observed that
the claim was “multifaceted” and included the
following parts:
... Friar contends that there was no probable cause for his
warrantless arrest, which requires the suppression of his
statements and of the evidence collected from his clothing
and his cell phone. [Footnote: A small amount of gunshot
residue was found on Friar's clothing.] In addition,
Friar argues that the [state trial court] should have
suppressed his statements because the police failed to honor
his requests for an attorney and to remain silent. He also
asserts that his statements were not voluntarily given but
were instead the product of coercion, intimidation,
deception, and ignorance.
See Id., 2016 WL 3346565, 2. Second, Friar
maintained that the state trial court erred when it granted a
motion in limine to exclude testimony “that a third
person had confessed to the crimes.” See Id.
at 7. Last, Friar maintained that the state trial court erred
when it refused to give lesser-included instructions. The
state Supreme Court found no reversible error and affirmed
his conviction.
Friar
then filed a petition for post-conviction relief pursuant to
Arkansas Rule of Criminal Procedure 37 (“Rule 37
petition”). He represented that he raised “claims
of ineffective counsel and other assertions having
merit” in the petition. See Docket Entry 7 at
CM/ECF 1. The state trial court denied the petition as
untimely and did not address the merits. See Friar v.
State, 2018 Ark. 276, 2018 WL 4783796 (2018).
Friar
attempted to appeal the denial of his Rule 37 petition, but a
timely notice of appeal was never filed. The records
maintained by the state Supreme Court reflect that on June
27, 2017, he filed a motion for belated appeal. On November
30, 2017, the motion was granted. On October 4, 2018, the
state Supreme Court affirmed the denial of his Rule 37
petition and gave the following reasons for doing so:
In his brief, Friar does not argue that the trial court erred
in ruling that his petition was untimely filed. Indeed, the
argument section of his brief is composed mainly of a
photocopy of his Rule 37 petition. This court will not make
an appellant's argument for him, nor raise an issue sua
sponte unless it involves the jurisdiction of this court to
hear the case. ... We may also review a void or illegal
judgment sua sponte. ... Actions taken by a court without
jurisdiction are null and void. ... Thus, we may raise the
issue of whether the trial court lacked jurisdiction to enter
the order on appeal sua sponte.
The timeliness of a postconviction petition is
jurisdictional. ... Here, the trial court dismissed the
petition as untimely, which would deprive it of jurisdiction
to consider the petition. Under these circumstances, the
circuit court clearly had jurisdiction to enter the order
dismissing the petition; therefore, the question is not
whether the trial court's action is void, but whether it
is correct. As this case does not present a potential
improper exercise of jurisdiction by the trial court, we are
not obliged to raise the issue of the trial court's
jurisdiction on our own. Because Friar has failed to
challenge the basis for the circuit court's dismissal of
his petition on appeal, the order dismissing the petition is
affirmed.
See Id., 2018 WL 4783796, 2.
II.
FEDERAL COURT PROCEEDINGS. On July 21, 2017, or after Friar
filed his motion for belated appeal but before the motion was
granted, he began this case by filing a petition for writ of
habeas corpus pursuant to 28 U.S.C. 2254. The petition set
forth no claims or facts. He simply attached the one-page
“Points on Appeal” section of ...