Friar v. Kelley

          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 ...