United States District Court, E.D. Arkansas, Pine Bluff Division
MICHAEL L. BOYD ADC # 115890 PETITIONER
v.
WENDY KELLEY, Director Arkansas Department of Correction RESPONDENT
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The
following recommended disposition has been sent to United
States District Court Judge D.P. Marshall, Jr. 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 Clerk no later than fourteen (14) 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 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 hearing
for this purpose before the United States District Judge, you
must, at the same time that you file your written objections,
include a “Statement of Necessity” that sets
forth the following:
1. Why the record made before the Magistrate Judge is
inadequate.
2. Why the evidence to be proffered at the requested hearing
before the United States District Judge was not offered at
the hearing before the Magistrate Judge.
3. An offer of proof setting forth the details of any
testimony or other evidence (including copies of any
documents) desired to be introduced at the requested hearing
before the United States District Judge.
From
this submission, the United States District Judge will
determine the necessity for an additional evidentiary
hearing, either before the Magistrate Judge or before the
District Judge.
Mail
your objections and “Statement of Necessity” to:
Clerk, United States District Court Eastern District of
Arkansas 600 West Capitol Avenue, Suite A 149 Little Rock, AR
72201-3325
DISPOSITION
For the
reasons explained below, it is recommended that the Petition
for Writ of Habeas Corpus (DE #1) be DISMISSED with
prejudice.
Procedural
History
Petitioner
was convicted by a Pulaski County jury for aggravated robbery
and theft of property in 2014, for robbing a Bank of the
Ozarks. On December 4, 2014, he was sentenced to 360 months
for the aggravated robbery and 120 months for the theft of
property, to run consecutively, in the Arkansas Department of
Correction. (DE # 8-2) The Petitioner filed a direct appeal
of the conviction arguing that the trial court: (1) erred by
denying his motion for directed verdict; (2) committed
reversible error by denying his motion to suppress statement;
and (3) committed reversible error by denying his motion to
suppress photographic identification. (DE # 8-6) The Arkansas
Court of Appeals affirmed the convictions on September 14,
2016. See Boyd v. State, 2016 Ark.App. 407.
On
October 18, 2016, Petitioner filed his pro se
petition for post-conviction relief in the trial court,
pursuant to Arkansas Rule of Criminal Procedure 37.1. (DE #
8-8) The grounds for relief asserted in the petition were:
(1) coerced confession; (2) actual and constructive denial of
counsel; and (3) denial of fair and impartial trial.
Id. The trial court denied the Rule 37 petition on
February 1, 2017. (DE # 1, pgs. 50-52) Petitioner appealed
the denial of his Rule 37 petition, and on November 8, 2017,
the Arkansas Court of Appeals affirmed the trial court's
denial of the petition. See Boyd v. State, 2017
Ark.App. 592. While the appeal was pending, Petitioner filed
a “Petition for Leave to Proceed In Forma
Pauperis” (DE # 8-13) and a “Motion for Return of
Seized Property” (DE # 8-14) in the trial court. The
trial court denied Petitioner's second post-conviction
petition as successive (DE # 1 pgs. 48-49). On May 29, 2018,
the trial court held a hearing on Petitioner's Motion for
Return of Seized Property. See Pulaski County,
Arkansas, Case 60CR-13-3549. The motion was denied on June
12, 2018, and Petitioner appealed the denial. Id. On
February 20, 2019, the Arkansas Court of Appeals remanded the
case to the trial court for supplementation of the record due
to lack of transcripts from the hearing on Petitioner's
seizure of property motion. Id.; Arkansas Court of
Appeals, No. CV-18-687. This matter is still pending.
On
December 4, 2017, Petitioner timely filed a petition for writ
of habeas corpus (DE # 1), pursuant to 28 U.S.C. § 2254,
asserting the following claims for relief:
1. Trial court committed reversible error by denying
Petitioner's motion to suppress photo ...