Gordon v. Payne

          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 ...