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Cutsinger v. Kelley

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

April 10, 2019

AARON M. CUTSINGER PETITIONER
v.
WENDY KELLEY, DIRECTOR, Arkansas Department of Correction RESPONDENT

          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

         Petitioner Aaron M. Cutsinger (“Cutsinger”) seeks a writ of habeas corpus pursuant to 28 U.S.C. §2254. Respondent Wendy Kelley (“Kelley”) has submitted her response to Cutsinger's application, and Cutsinger has, at the invitation of the Court, countered Kelley's response.

         Cutsinger is currently in the custody of the Arkansas Department of Correction (“ADC”) following his 2016 jury trial in the Washington County Circuit Court on the charges of first-degree murder, attempted first-degree murder, and committing first-degree murder in the presence of a child. Cutsinger was convicted and sentenced to a total of 80 years' imprisonment. On direct appeal, Cutsinger argued the trial court erred in denying his motion in limine to exclude a portion of a threatening text message sent to the first-degree murder victim. The Arkansas Court of Appeals agreed with Cutsinger that the portion of the text message concerning his thoughts about police (“I'm ready to kill me some cops”) was not relevant and should have been excluded. However, the Court further found that any prejudice caused by the admission of this portion of the text message was slight. In view of the overwhelming evidence of Cutsinger's guilt, the trial court's error in allowing this statement to be admitted was harmless, according to the Arkansas Court of Appeals. Thus, the convictions were affirmed. Cutsinger v. State, 2017 Ark.App. 647.

         More than ten months after the convictions were affirmed, Cutsinger filed a Rule 37 petition for postconviction relief with the trial court. In the petition, filed in October 2018, he alleged his trial attorney was ineffective for failing to object to evidence showing he stopped at stores and watched a Razorback football game after the murder occurred, for failing to “put much effort” into the case, and for failing to exclude Cutsinger's video confession. He further alleged his appellate counsel was ineffective for neglecting to communicate with him and for failing to provide a copy of the appellate opinion until February 2018. Docket entry no. 8-4. The trial court denied the Rule 37 petition, finding the mandate of the Arkansas Court of Appeals issued on December 19, 2017, started the clock on the sixty day period in which Cutsinger could file a timely Rule 37 petition. Because Cutsinger failed, by about eight months, to file a timely petition, the trial court dismissed the petition due to its lack of jurisdiction. Docket entry no. 8-6. Cutsinger did not appeal.

         In his federal habeas corpus petition, Cutsinger contends:

(1) he received ineffective assistance of counsel;
(2) his conviction was obtained by the action of a grand or petit jury which was unconstitutionally selected and impaneled;
(3) his conviction was obtained by use of a coerced confession; and
(4) his conviction was obtained by violation of his privilege against self-incrimination.

         Kelley contends that all of Cutsinger's claims are procedurally barred in this Court due to his failure to adequately pursue these claims in state court, as required by Wainwright v. Sykes, 433 U.S. 72 (1977), and its progeny. Specifically, Kelley cites Cutsinger's failure to raise his claims of ineffective assistance of counsel in a timely Rule 37 proceeding in state court. Further, Kelley contends that Cutsinger's remaining claims are procedurally barred because they were not raised at trial or on direct appeal. By prior Court Order, Cutsinger was notified of his opportunity to respond to Kelley's procedural default arguments, and he has done so. Docket entry nos. 10 & 11.

         Procedural Default Analysis

         In Wainwright v. Sykes, supra, the United States Supreme Court held that a federal court should not reach the merits of a litigant's habeas corpus allegation if he has procedurally defaulted in raising that claim in state court: that is, if he was aware of the ground, but failed to pursue it to a final determination. The exception created by the Supreme Court permits such an allegation to be addressed if the litigant can establish "cause" for his failure to assert the known ground and "prejudice" resulting from that failure. See also, Clark v. Wood, 823 F.2d l24l, l250-5l (8th Cir. l987); Messimer v. Lockhart, 822 F.2d 43, 45 (8th Cir. l987). The Wainwright v. Sykes ...


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