United States District Court, E.D. Arkansas, Pine Bluff Division
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
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