United States District Court, E.D. Arkansas, Pine Bluff Division
AARON M. CUTSINGER PETITIONER
WENDY KELLEY, DIRECTOR, Arkansas Department of Correction RESPONDENT
FINDINGS AND RECOMMENDATION
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.
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
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
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.
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
(3) his conviction was obtained by use of a coerced
(4) his conviction was obtained by violation of his privilege
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.
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 ...