Bowden v. Kelley

          PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS

          JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE.

         The following recommended disposition has been sent to United States District Judge Billy Roy Wilson. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in a waiver of the right to appeal questions of fact.

         If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a new hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.

2. Why the evidence to be proffered at the new hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.

3. The details of any testimony desired to be introduced at the new hearing in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing.

         From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and “Statement of Necessity” to:

Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR 72201-3325

         DISPOSITION

         I. BACKGROUND

         Petitioner, Michael Bowden, was convicted of capital murder by a Boone County jury in 1987 and sentenced to life without the possibility of parole. (Doc. No. 7 at 1.) The Arkansas Supreme Court reversed his conviction based upon an improper police lineup procedure and remanded the case for a retrial. (Id.) Mr. Bowden was retried, once again convicted of capital murder, and sentenced to life without the possibility of parole. (Id.) His direct appeal on this second conviction was unsuccessful. Bowden v. State, 301 Ark. 303 (1990). Additionally, Mr. Bowden's subsequent petition for Rule 37 relief was also denied. (Id.) Bowden v. State, 1992 WL 94509 (Ark. Apr. 20, 1992). The Arkansas Supreme Court recounted the facts of the case in Mr. Bowden's first appeal as follows:

At 1:55 a.m. on April 19, 1987, Gary Keeter, a Harrison police officer, went to the home of Johnny Hefley in response to a call that there was a disturbance there. Upon the officer's arrival, a man from across the street told him that he had “a little boy over at his home who says his mom and dad is bleeding.” Upon entering Hefley's residence, Keeter saw the bleeding bodies of Johnny Hefley and Cindy Bowden, Hefley's former wife. In addition, Keeter saw a number of nine millimeter shell casings lying on the floor.

Other officers arrived on the scene a few minutes later. According to Officer Glen Redding, the police were able to make the following factual observations at this point: (1) the victims were shot to death; (2) neither victim appeared to be armed; (3) there was no forced entry into the residence; (4) in light of the location of the bodies (Hefley's was slumped over in a chair; Bowden's was on the floor beside Hefley's), what they were wearing, and the fact that there were no signs of forced entry, Hefley and Bowden apparently knew their murderer.

Upon being advised that Hefley's and Bowden's five-year-old son, John David Hefley, was across the street at a neighbor's residence, Officer David Cone spoke with him. John David told the officer that he had been in his bedroom and heard what he thought was a fight between his mother and father and that he got out of bed, walked into the living room, and found his mother and dad lying on the floor. The officer then asked him if anyone else had been there that night. John David replied, “Michael Bowden from Texas.”

Officers at the scene also talked with Michael James, who lived two houses down from the Hefleys' home. According to James, as he was driving up to his house earlier that night around 1:30 a.m., he noticed a late 70's dark blue Ford pickup truck parked on the street in front of the Hefleys' home. A few minutes later, while he was at his home, James heard a loud metallic banging noise and a female voice “trying to get them to stop.” In all, he heard seven or eight of these noises. Immediately thereafter, he heard a car door slam and gravel spin out from under the tires. He then looked out of his window and saw the pickup ...