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Dansby v. Kelley

United States District Court, W.D. Arkansas, El Dorado Division

August 21, 2019

RAY DANSBY PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          MEMORANDUM OPINION AND ORDER

          ROBERT T. DAWSON SENIOR U.S. DISTRICT JUDGE

         The Petitioner, Ray Dansby, was convicted of the capital murders of his ex-wife, Brenda Dansby, and Ronnie Kimble. Dansby was sentenced by the jury, on each charge, to death by lethal injection. The matter comes before this Court, on remand from the Eighth Circuit Court of Appeals, with respect to Claims II and III of the Petitioner's second amended petition for writ of habeas corpus. The Court finds and orders as follows:

         I. PROCEDURAL HISTORY

         As set forth above, following a jury trial in Arkansas state court, Ray Dansby was convicted on two counts of capital murder and sentenced to death. After his state appeal and post-conviction review, this Court denied Dansby's application for a writ of habeas corpus. Following review by the United States Court of Appeals for the Eighth Circuit (“Court of Appeals”), the United States Supreme Court remanded the matter for further consideration by the Court of Appeals in light of Trevino v. Thaler, 569 U.S. 413 (2013).

         On December 11, 2014, the Court of Appeals issued a Mandate, in accordance with its September 5, 2014 Opinion and Judgment, affirming in part, reversing in part, and remanding the matter to this Court for further consideration. Specifically, the Court of Appeals vacated the dismissal of Claims II and III of the Dansby's second amended petition and remanded the case for further consideration of those claims. The Court of Appeals affirmed the dismissal of the remaining claims on appeal.

         With respect to Claim II, the Court of Appeals found “that the district court erred in determining that Dansby failed to present a Sixth Amendment claim to the Arkansas Supreme Court.” Dansby v. Hobbs, 766 F.3d 809, 823 (8th Cir. 2014). The Court of Appeals further found that “[t]he parties have not addressed the extent to which the factual premises of Dansby's . . . federal claim were presented to the state supreme court.” The Court of Appeals instructed this Court to further consider Claim II in this regard. Id.

         With respect to Claim III, although this Court previously dismissed Dansby's claim under Brady-Napue on the grounds that it was procedurally defaulted, the Court of Appeals found that the Court did not give the parties “fair notice and an opportunity to present their positions” with respect to procedural default and remanded the claim for further consideration. Dansby, 766 F.3d at 824.

         Based on the Court of Appeals' Mandate, this Court ordered the parties to provide briefs on the remaining issues as follows:

* with respect to Claim II, the parties were to address the extent to which the factual premises of Claim II were presented to the state supreme court and the effect that presentation has on procedural default; and,
* with respect to Claim III, the parties were to address the issue of procedural default as to Dansby's so-called Brady-Napue claim. (ECF No. 140).

         The parties' briefs have been filed and this matter is now ripe for decision.

         II. FACTS

         In adjudicating Dansby's direct appeal, the Supreme Court of Arkansas set forth a summary of the presented evidence. Pursuant to 28 U.S.C. § 2254(e)(1), “a determination of a factual issue made by a State court shall be presumed to be correct.” Although this presumption may be rebutted by Dansby, the Court finds that Dansby has not done so. Thus, as determined by the Arkansas Supreme Court, the facts are as follows:

The facts as related by the various witnesses are these. On the morning of August 24, 1992, Brenda Dansby left her residence at 1402 North Roselawn in El Dorado to go to the store to get her eight-year-old son, Justin, some orange juice, as he was sick with a cold. Brenda's boyfriend, Ronnie Kimble, was sleeping on a couch in the living room, while Justin was seated in a red chair in the same room watching television. According to Justin, his father, Appellant Ray Dansby, came around the side of the house to the front yard as his mother was pulling up into their driveway in her car. Ray ordered her to get out of the car twice before she complied. Justin looked out the screen door and watched as his father “had my mother like a shield” then “shot [her] in the arm and then in the neck.” Ray then came in the house, and, according to Justin, it was after Ray shot Ronnie in the chest that Ronnie got his gun, which was located underneath the couch, and positioned himself behind it. Justin had returned to his seat on the red chair, and “was afraid I was going to get shot so I lifted my feet up.” Justin further testified that he heard “clicking noises” and that Ronnie shot his gun, but that, to his knowledge, the weapon never did fire. Ray then chased Ronnie through a straight hallway to Justin's room in the back of the house, and thereafter, Justin heard about five more shots. It was Justin's testimony that he retreated to his mother's room to see what had happened, and saw his father standing by Ronnie, observed him kick Ronnie twice, and heard Ray say something to him, though he could not remember what it was. As Justin exited the house, he saw his mother, who “had blood all over her neck” and “wasn't moving.” He then left with his father, and the two walked down the road, and when they separated, Justin called the police from another residence.
Greg Riggins, Brenda's neighbor who lived across the street, testified that he was in bed when he heard shots, at which time he jumped up and went to his front door, where he witnessed Brenda and Ray struggling with a revolver. He watched as Ray, who was standing directly behind Brenda, hit her in the back with his fist, knocking her down into the corner of the house. According to Mr. Riggins, Ray got the gun away from Brenda, stood two or three feet away from her, and shot two rounds consecutively, knocking her flat on the ground. As Brenda tried to sit up, Ray discharged another shot, which Mr. Riggins believed missed Brenda. It was Mr.
Riggins testimony that “then after maybe five or six seconds he paused and the next shot went off. I assume he hit her in the head and her head launched and she went flat.” Mr. Riggins stated that Justin was standing by the second post at the front of the house and witnessed his mother's murder. He further testified that, while he did not see any shots coming from the house, Ray ducked and hesitated before firing a shot, then went into the house after someone inside.
Several El Dorado police officers were dispatched to the residence at approximately 8:28 a.m., one of whom was Officer Larry Weaver. He arrived at the scene to find Brenda's body outside, and Ronnie injured on the floor in the back bedroom, who was attempting to crawl and had a .38 automatic pistol laying under him which was jammed and opened where it would not work. Ronnie died several days later at an area hospital, after telling Detective Carolyn Dykes that Ray had shot him. Shortly thereafter, Officer Mike Stegall located Ray walking on a nearby street, at which point Ray flagged him down, stating that “I'm Ray Dansby, ya'll are looking for me.” When Officer Stegall inquired as to whether he had any guns on him, Ray replied that he had thrown them away. After being transported to the police station, Ray was verbally advised of his rights by Lieutenant Mike Hill, then stated that he left the scene with a .32 revolver and a .38 revolver, which he threw away where officers would never find them. Ray further stated to the officers that he took the weapons to Brenda's residence because he knew that she had a .38 and that Ronnie had a handgun of some type. According to Ray, upon his arrival at the residence, he walked in the front door, where he was met by Ronnie, who was holding a handgun in his right hand “pointed down.” After an argument or discussion erupted, Ray said, “I just pulled my gun and started shooting.” After making these statements and submitting to a gunshot residue test, Ray signed a written rights waiver form, but refused to give a taped statement.
Lt. Hill stated that he was present when a .38 Interarms blue steel revolver was recovered under a manhole cover in the bottom of a drainage ditch on a street approximately three to four blocks from Brenda's residence. At the time of recovery, the weapon, which was registered to Brenda, had five expended cartridge cases in the cylinder.
Sergeant Ricky Roberts testified that, along with a set of car keys, a purse, and a gun carrying case, four .32 caliber live rounds of ammunition were found under Brenda's body. Additionally, seven rounds of .38 caliber ammunition were laying around her body, and another .38 round was found on the porch. Inside, Sgt. Roberts stated that there was blood behind and on the back of the couch in the living room, as well as on a dress on an ironing board and on some houseshoes which were both located behind the couch. A silver-tipped round .38 bullet was also recovered from behind the couch, similar to two rounds found in the clip and the one jammed inside the .38 Colt automatic which was recovered near Ronnie, but different from the other .38 rounds recovered.
Ann Hoff, a criminalist with the State Crime Lab, analyzed the gun shot residue kit taken from Ray, and found residue on both his hands. She received a kit submitted on Brenda by the medical examiner's office, and also received positive results, explaining that residue found on her hands would be consistent with a struggle over the gun if it had gone off, with her hands being held up while being shot, or with her firing the gun.
Dr. Frank Peretti, Associate Medical Examiner with the State Crime Lab, performed autopsies on both victims and testified that on Brenda's body, he located gunshot wounds near the left ear and upper chest. On Ronnie's body, he observed gunshot wounds behind the left ear, chest, left upper back, right arm, and two superficial wounds on the left flank. It was Dr. Peretti's opinion that Ronnie was “probably bent over” when he was shot in the back, and that the cause of death was pneumonia complicating multiple gun shot wounds.
Berwin Monroe, a firearms expert with the State Crime Lab, testified that three of the four bullets recovered from Ronnie's body were of the .32 caliber class, and that the fourth bullet was fired from Brenda's gun, the .38 Interarms blue steel revolver. It was Mr. Monroe's testimony that the bullet recovered from Brenda's chest and the fragments recovered from her head were also fired from her gun.
Lisa Bridges, a receptionist at the prosecutor's office, testified that she notarized an affidavit signed by Brenda on August 3, 1992, which she passed on to the deputy prosecutor, who in turn filed charges against Ray. Paula Henderson, the chief deputy clerk for the municipal court, confirmed that Ray was scheduled to appear at 9:00 a.m. on the day of the murders on charges of assault in the second degree and contempt of court. Officer James Morrow testified that on July 21, 1992, he was dispatched to Brenda's residence after she had complained that an unwanted person, Ray Dansby, was there. At destination, he observed Brenda and Ray talking out in the yard, and recalled that as Brenda had a gun between the seats of her car, he advised her that she needed to keep it in her house. Officer Morrow further testified that he advised Ray that he needed to leave the property, that he was not to return, and that Ray left without further incident.
At trial, Larry McDuffie, a witness for the State, testified that Ray, who was his girlfriend's half-brother, confessed to committing the murders while they were in jail together on August 24, 1992. According to McDuffie, Ray stated that he went to Brenda's residence after she refused to “take those papers off of him, ” referring to his pending municipal charges, as “he wasn't going to go to jail for nothing this time.”

Dansby v. State, 893 S.W.2d 331, 333-35 (Ark. 1995). Additional particular facts will be referenced herein as they relate to the individual grounds for relief addressed in this order.

         III. CLAIM II - CONFRONTATION CLAUSE

         In Claim II of Dansby's second amended petition, Dansby asserts that the state trial court denied his right under the Sixth Amendment to confront a witness against him, Larry McDuffie. This Court previously dismissed the claim on the grounds that it was procedurally defaulted, concluding that Dansby never presented this claim of federal constitutional error in his direct appeal to the state supreme court. The Court of Appeals, however, found that Dansby sufficiently presented the legal premises of his claim under the Sixth Amendment:

[o]n direct appeal, Dansby challenged the trial court's restrictions on cross-examination, arguing in part that McDuffie's ‘past dealing with law enforcement, including all the surrounding circumstances of his past criminal record and the penalties or rewards he received, were relevant to the jury's consideration of the testimony he would give at the trial.' Dansby urged, among other things, that the trial court's right to limit testimony ‘must be weighed against the defendant's confrontation rights and fair trial rights guaranteed by the Sixth Amendment.'

(ECF No. 133 at 16). The Eighth Circuit, however, went on to find that the parties had not addressed the extent to which the factual premises of his claim were presented to the state supreme court. The Court of Appeals therefore vacated the dismissal of Dansby's Sixth Amendment claim and remanded it to this Court for further consideration.

         According to the briefs of the parties, Dansby will forego reliance on any facts not presented in the state trial court record in order to ensure that the claim is not procedurally defaulted. Further, the Respondent concedes that the Confrontation Clause claim was fairly presented to the state courts and is not procedurally defaulted. Given the parties' positions and the Court's review of Dansby's factual arguments during his direct appeal to the Arkansas Supreme Court, the Court finds that Dansby's Confrontation Clause claim was fairly presented to the state court.

         “The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.'” Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). “‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.”' Davis v. Alaska, 415 U.S. 308, 315-16 (1974)(quoting 5 J. Wigmore, Evidence § 123 (3d ed. 1940)(emphasis in original). A violation of the Confrontation Clause is established by a showing that a criminal defendant “was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” Van Arsdall, 475 U.S. at 680.

         In accordance with the Sixth Amendment's Confrontation Clause, a defendant has the right to elicit enough facts about a witness' “possible biases, prejudices, or ulterior motives” to let the jury assess witness credibility. Davis v. Alaska, 415 U.S. at 316. “[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Id. at 316-17.

         However, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679. “[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985)(emphasis in original).

         Further, in order for a violation of the Confrontation Clause to be found, there must be a showing that “[a] reasonable jury might have received a significantly different impression” of a witness' credibility if counsel had been permitted to pursue the proposed line of cross-examination. Van Arsdall, 475 U.S. at 680.

         A. Standard of Review

          Although both parties agree - and argue - that the Confrontation Clause claim is not procedurally defaulted, the parties disagree on the standard of review which should be given the claim.

         1. De Novo Review

         Dansby contends that although he presented his federal Confrontation Clause claim to the Arkansas Supreme Court, the Arkansas Supreme Court did not adjudicate the Confrontation Clause claim and instead addressed only a related state-law claim. Because he argues the Confrontation Clause claim was not adjudicated, Dansby contends that 28 U.S.C. § 2254(d) does not require deference to the Arkansas Supreme Court's direct appeal opinion, but that this Court should conduct a de novo review of the claim. Finally, Dansby contends that this Court should grant habeas relief based on a prejudicial violation of his Confrontation Clause rights.

         2. Merits

         The Respondent contends the claim should be subject to § 2254 merits based review, giving deference to the state court's ruling denying relief. When the merits of a claim presented in a habeas action have been addressed in state court proceedings, the habeas court cannot grant habeas corpus relief upon the claim unless it determines that the state court proceedings resulted in a decision that (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

         To find that a decision is contrary to clearly established federal law, a habeas court must find that the state court decision directly contradicts Supreme Court precedent or if, when faced with “materially indistinguishable” facts, the state court reached a decision that was opposite to a result reached by the Supreme Court. Kinder v. Bowersox, 272 F.3d 532, 537-38 (8th Cir. 2001). With respect to the reasonableness requirement, the petitioner must show that the state court decision is “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000)(O'Connor, J., concurring in part). Although a state court's application of federal law might be mistaken in this Court's independent judgment, that does not mean that it is objectively unreasonable. Id. at 411-13. Relief is warranted only “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

         3. Harmless Error

         The Respondent further contends that any Confrontation Clause error was harmless, both as to Dansby's guilt and as to his two capital sentences. In § 2254 proceedings, a court must assess the prejudicial impact of any constitutional error. See Fry v. Pliler, 551 U.S. 112, 121-122 (2007). Under Brecht v. Abrahamson, 507 U.S. 619 (1993), “the standard for determining whether habeas relief must be granted is whether the . . . error ‘had substantial and injurious effect or influence in determining the jury's verdict.”' Brecht, 507 U.S. at 623 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). According to the Eighth Circuit in Christenson v. Ault, “[a] ‘substantial and injurious effect' occurs when a court finds itself in ‘grave doubt' about the effect of the error on the jury's verdict.” 598 F.3d 990, 994-95 (8th Cir. 2010). Further, “‘grave ...


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