Boyd v. Kelley

          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 ...