United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS
JOE J.
VOLPE, UNITED STATES MAGISTRATE JUDGE.
INSTRUCTIONS
The
following recommended disposition has been sent to United
States District Judge Brian S. Miller. 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
(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 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 A 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
On
March 1, 2013, a Pulaski County jury convicted Ivor Gordon of
capital murder and criminal attempt to commit capital murder
after he was promised $470 and a 2002 Chevrolet Suburban to
perform a hit. Gordon v. State, 470 S.W.3d 673, 674
(2015). The court imposed two sentences of life imprisonment
without the possibility of parole. Id. He appealed
and the Arkansas Supreme Court affirmed. The Court briefly
recited the facts of the case as follows:
This is a murder-for-hire case. According to Gordon's
statement to police, which was introduced at trial, he was
hired by Danny Brown to kill Brown's ex-girlfriend and
mother of his two children, Edwina Martin. On January 3,
2012, Gordon and Quentin Jones waited for Martin outside her
mother's apartment on Green Mountain Drive in Little
Rock. When she and her boyfriend, Daniel Hill, arrived,
Gordon and Jones followed them inside the apartment;
Martin's mother and ten-year-old nephew were also
present. Gordon shot Martin with a .40 Taurus, but Hill then
tackled Gordon and got his gun. At that point, Jones shot
Hill in the head. Ultimately, Hill was killed and Martin was
shot in the chest and hip but survived her injuries. Gordon
was paid $250 before the shooting, and he received a 2002
Chevrolet Suburban and an additional payment of $220 after
the shooting. Phone records and video from a Wal-Mart parking
lot surveillance camera confirmed that Gordon had been in
phone contact with Danny Brown and that he had picked up the
Suburban; pay stubs belonging to Brown were found in the
vehicle. Both Edwina Martin and her nephew identified Gordon
in a photo line-up.
At trial, Gordon's counsel admitted that Gordon and Jones
had shot the victims and did not challenge the sufficiency of
the evidence; the defense strategy was to convince the jury
that Gordon was not guilty of capital murder but, instead, of
first- or second-degree murder. The jury found Gordon guilty
of capital murder and criminal attempt to commit capital
murder, with the above-noted enhancements, the court
sentenced him, and he filed a timely notice of appeal on
March 14, 2013.
Gordon v. State, 2015 Ark. 344, 2-3, 470 S.W.3d 673,
674-75 (2015).
On
December 16, 2015, Mr. Gordon, claiming ineffective
assistance of counsel at trial, filed a timely petition
seeking post-conviction relief under Arkansas Rule of
Criminal Procedure 37. (Doc. No. 7 at 2.) The Pulaski County
Circuit Court denied relief. (Id.) On March 8, 2018,
the Supreme Court of Arkansas affirmed the trial court's
dismissal of his Rule 37 petition. Gordon v. State,
2018 Ark. 73, 2, 539 S.W.3d 586, 590 (2018).
Mr.
Gordon filed the instant Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 on February 25, 2019. (Doc.
No. 2.) In it, he makes the same arguments he made in his
Rule 37 petition. Namely, he argues he had ineffective
assistance of counsel at trial because his lawyer: (1)
neglected to object and file a pretrial motion to suppress a
Miranda rights form and custodial statement; (2) performed
inadequate pre-trial investigation by failing to investigate
the circumstances of the case; (3) failed to ...