Mouton v. Kelley

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following recommended disposition has been sent to Chief United States District Judge Brian S. Miller. 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 Clerk within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         Carl Mouton (“Mouton”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mouton is currently in the custody of the Arkansas Department of Correction (ADC) following 2017 convictions in the Circuit Court of Pulaski County on two counts of sexual assault in the second degree of a minor. Mouton was sentenced to five years' imprisonment on one count and fined $10, 000 on the other count. On direct appeal, Mouton alleged his constitutional right to present a defense was violated when the trial court denied his request to present evidence of the sexual nature of the relationship between the victim, K.V., and another minor, E.P. The trial court ruled that Mouton could introduce evidence that K.V. and E.P. were close friends, but could not introduce evidence that they had a prior sexual relationship. The Arkansas Supreme Court affirmed the convictions, finding the trial court's ruling comported with Arkansas Rule of Evidence 411 and did not violate Mouton's right to present a defense. Mouton v. State, 2018 Ark. 187, cert. denied, 139 S.Ct. 289, 202 L.Ed.2d 137 (2018). Mouton's petition for writ of certiorari with the United States Supreme Court was denied in October 2018.

         In November 2017, Mouton appeared before the Arkansas Parole Board, which deferred a decision on parole until Mouton completed the Reduction of Sexual Victimization Program (“RSVP”). Mouton has opted not to participate in RSVP, alleging that completion of the program requires him to admit his guilt to the charges of which he was convicted.

         In November 2018, Mouton filed this habeas corpus petition, alleging the following constitutional errors:

1. His right to present a defense was violated by the Arkansas Courts' refusal to permit him to present evidence concerning the nature of the relationship between the accuser and a person who clearly was positioned to be antagonistic to him. Mouton alleges this argument, raised at trial and on direct appeal, has merit because the Arkansas Courts unreasonably interpreted clearly established Supreme Court precedent; and

2. The State of Arkansas is penalizing Mouton's exercise of his Fifth Amendment right against self-incrimination by conditioning his parole on completion of RSVP, which requires him to state he is guilty of the offenses.

         Respondent Wendy Kelley (“Kelley”) has responded, contending the claims are without merit.

         Mouton's First Claim for Relief.

         Mouton and Kelley agree that this claim was adjudicated in state court. When the state court has ruled on the merits of a petitioner's claims, a writ of habeas corpus may not be granted unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court.” 28 U.S.C. § 2254(d)(1), (2). The United States Supreme Court offers guidance in interpreting the statute:

A state court decision will be “contrary to” our clearly established precedent if the state court either “applies a rule that contradicts the governing law set forth in our cases, ” or “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” A state court decision will be an “unreasonable application of” our clearly established precedent if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” . . .

Distinguishing between an unreasonable and an incorrect application of federal law, we clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable.

Penry v. Johnson, 532 U.S. 782, 792-93 (citations omitted).

         Mouton and Kelley also agree on what constitutes the clearly established federal law applicable in this case - Olden v. Kentucky, 488 U.S. 227 (1988) (per curiam), Davis v. Alaska, 415 U.S. 308');">415 U.S. 308 (1974), and Crane v. Kentucky, 476 U.S. 683 (1986). These cases all deal with a defendant's constitutional right to present a complete defense. The consensus on whether the claim was adjudicated in state court and on the applicable federal law leaves only one question - was the decision rendered by the Arkansas courts contrary to, or an unreasonable application of, the above-cited cases of the United States Supreme Court?

         The Arkansas Supreme Court's consideration of this issue is the starting point:

         Appellant Carl Mouton, was convicted in the Pulaski County Circuit Court of two counts of sexual assault in the second degree. On appeal, Mouton argues that he should have been permitted to present evidence of the sexual nature of the relationship between the victim, KV, and another minor, EP. Mouton argues that the exclusion of this evidence did not comport with Arkansas Rule of Evidence 411, and that the exclusion violated his constitutional right to present a defense. . .

         I. Background

         Carl Mouton was the band director for Oak Grove High School and then continued to serve as band director after Oak Grove High School became Maumelle High School in 2011. The high school's band program saw great success during Mouton's tenure, which developed an environment where both parents and students alike took pride in the school band and participated in its activities through a booster program.

         KV attended Maumelle High School and played in the band from 10th through 12th grade. She graduated early at sixteen years old and was attending classes as a freshman in college at the time of the trial below. KV, like many other students, had a very close and friendly relationship with Mouton. KV and Mouton would regularly hug each other at school and band functions. Beginning in November 2014, KV began a dating relationship with another female student in the band, EP. At some point, KV's and EP's parents found out about their relationship, and they attempted to put an end to it by having KV, EP, and certain school officials sign an agreement that KV and EP would not sit together or hang out together at school unsupervised; however, Mouton did not force the girls to abide by the agreement when they were under his supervision. By the date of the pretrial hearing, May 8, 2017, KV and EP were no longer in a dating relationship.

         During this time, EP was living in Little Rock, but she was able to attend Maumelle High School because her mother, Diedre Pippenger, had agreed with another individual, Leonard McKinney, who resided in Maumelle and with whom Pippenger reportedly had a close relationship, to represent to the public that EP was living at McKinney's residence. McKinney was very involved in the band's booster program and has a child of his own who had been in the band.

         According to KV's pretrial testimony, during finals week of her sophomore year, KV and Mouton gave each other an end-of-the-year goodbye hug, and Mouton grabbed KV's bottom during their embrace. KV testified that Mouton continued to periodically grab her bottom when the two would hug throughout the remainder of her time at Maumelle High School. She also testified that in May 2015, Mouton pulled her breast out of her shirt and placed his mouth over her breast for approximately 15 seconds. KV reportedly told EP about the incident via text message two weeks later in July 2015 and made EP promise to keep it a secret. No. evidence was presented regarding any other communicating or reporting of the incident at the time.

         Over the course of the next year, Mouton's relationship with McKinney deteriorated due to disagreements about the management of the band. Mouton eventually “fired” (or was in the process of firing) McKinney from the booster club during the week of May 5-11, 2016. Mouton's and McKinney's disagreements apparently manifested in a “blowup” at a meeting at the school on May 5, 2016, for which both EP and McKinney were present and from which McKinney drove EP home. EP testified that, the next evening, she told her mother about the incident KV had described approximately a year prior. Pippenger herself recalled EP disclosing what KV had said about Mouton the same night McKinney drove her home from the meeting.

         Pippenger testified that, for a day or two, she did not do anything in response to EP's disclosure, and she then called McKinney looking for advice. McKinney gave Pippenger the telephone number for the child-abuse “Hot Line, ” which Pippenger reportedly called a couple of days later. The ensuing investigation led to Mouton being charged with, and later convicted of, two counts of second-degree sexual assault against KV.

         II. Issues on Appeal and Applicable Legal Authority

         The issues on appeal stem from the trial court's decisions with respect to two pretrial motions. The first was Mouton's “rape-shield” motion, which sought to introduce evidence of the sexual nature of KV's relationship with EP. The trial court denied this motion, ruling that Mouton could present evidence that KV and EP were close friends, but not evidence of their previous sexual relationship. Mouton appeals this decision, arguing that the ...