United States District Court, E.D. Arkansas, Pine Bluff Division
RODRIC D. COHNS ADC #131216 PETITIONER
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT
Kristine G. Baker United States District Judge
the Court are Findings and Recommendations submitted by
United States Magistrate Judge Patricia S. Harris (Dkt. No.
21). Plaintiff Rodric Cohns filed an objection to the
Findings and Recommendations (Dkt. No. 22). After careful
review of the Findings and Recommendations, a de
novo review of the record, and a review of the
objections, the Court adopts the Findings and Recommendations
as its findings in all respects (Dkt. No. 21). Furthermore,
the Court denies Mr. Cohns' petition for writ of habeas
corpus (Dkt. No. 1). The Court denies as moot Mr. Cohns'
motion for status update (Dkt. No. 24).
Cohns is currently in the custody of the Arkansas Department
of Correction (“ADC”) and is seeking a writ of
habeas corpus under 28 U.S.C. § 2254 (Dkt. Nos. 1; 21,
at 1). A Faulkner County jury was convened in 2014 after Mr.
Cohns was charged with aggravated robbery and theft of
property (Dkt. No. 21, at 1). The trial court declared a
mistrial (Id.). Following the mistrial, the
prosecutor amended the information to include charges of
witness bribery and failure to appear (Id.). Mr.
Cohns requested and received a severance of the new charges
(Id.). In October 2015, Mr. Cohns was tried and
convicted of aggravated robbery, and he was sentenced as an
habitual offender to ten years' imprisonment, which was
the minimum sentence available to the jurors (Id.,
at 1-2). In January 2016, Mr. Cohns was tried and convicted
of witness bribery and failure to appear, and he was
sentenced as an habitual offender to 42 years'
imprisonment (Id., at 2). Mr. Cohns did not appeal
his convictions for witness bribery and failure to appear
(Id.). In his direct appeal of the aggravated
robbery conviction, Mr. Cohns alleged that he was subjected
to double jeopardy and that the trial court erred in denying
his motion to suppress a statement he made to the victim at
the scene of the crime (Id.). Cohns v.
State, 516 S.W.3d 789 (Ark. Ct. App. 2017),
reh'g denied (Apr. 19, 2017), review
denied, 2017 Ark. 187 (2017). Although Mr. Cohns sought
state habeas corpus relief on several occasions, he did not
file a timely Rule 37 petition (Id.).
13, 2018, Mr. Cohns filed his federal habeas corpus petition
(Dkt. No. 1). In that petition, Mr. Cohns alleged the
following claims for relief: (1) he was subjected to double
jeopardy with regard to his aggravated robbery conviction;
(2) he was sentenced to terms that exceed the maximum
statutory range of punishment regarding his convictions for
witness bribery and failure to appear; (3) trial court error
in connection with DNA testing of hairs, apparently with
regard to his aggravated robbery conviction; and (4) error in
withholding video and audio evidence regarding the aggravated
robbery conviction (Id., at 5-11). For relief, Mr.
Cohns asks the Court to enter an order dismissing
petitioner's conviction with prejudice or modify his
sentence to fall within the legal statutory range of
punishment (Id., at 15). Defendant Wendy Kelley
responded in opposition to Mr. Cohns' petition, and Mr.
Cohns replied to that response (Dkt. Nos. 10, 18). In
response to an Order from Judge Harris, Director Kelley
provided supplemental briefing regarding Mr. Cohns'
status as a habitual offender and addressing the merits of
Mr. Cohns' second claim for relief (Dkt. Nos. 19, 20).
Findings And Recommendations
Harris recommends that Mr. Cohns' petition for writ of
habeas corpus be dismissed (Dkt. No. 21, at 15). Regarding
Mr. Cohns' first claim, Judge Harris reproduced four
pages of the Arkansas Court of Appeals' underlying
opinion and found that the state court had ruled on the
merits of this claim, meaning that Mr. Cohns was required to
show that decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court” or that the state
court's decision “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court” (Id., at 7). 28 U.S.C.
§ 2254(d)(1), (2). Judge Harris found that Mr. Cohns
failed to make this showing (Dkt. No. 21, at 8-9).
Mr. Cohns' second claim, Judge Harris found that Mr.
Cohns failed to explain adequately why he did not pursue
federal appellate relief prior to this habeas petition
(Id., at 13). In Mr. Cohns' reply, he argued
that he received ineffective assistance of counsel on this
issue (Dkt. No. 18, at 5-6). Judge Harris found that argument
as an explanation for why Mr. Cohns did not pursue
state appellate relief rather than federal
appellate relief in a timely fashion (Dkt. No. 21, at 13).
Judge Harris found that Mr. Cohns did not timely pursue
federal relief regarding his second claim and did not explain
his failure to do so in a satisfactory manner (Id.,
at 13-14). Additionally, Judge Harris found inapplicable any
equitable tolling of the statutory period to salvage Mr.
Cohns' claim (Id., at 14). Accordingly, Judge
Harris recommends dismissal of Mr. Cohns' second claim as
Mr. Cohns' third and fourth claims, Judge Harris found
them procedurally barred because Mr. Cohns failed to present
adequately these claims in state court (Id., at 9).
However, setting aside procedural default, Judge Harris also
found these claims meritless (Id., at 10-11).
Regarding the third claim, Judge Harris found that Mr. Cohns
failed to demonstrate that a trial error occurred or that the
DNA testing of hair found on a jacket introduced into
evidence would have uncovered evidence relevant to the
charges against him or affected the trial result
(Id., at 10). Regarding the fourth claim, Judge
Harris found that Mr. Cohns failed to show a due process
violation from withholding audio or video evidence since that
evidence was not withheld but rather was lost due to
malfunctions (Id., at 11). The jury was apprised of
the loss of the recording and had the opportunity to assess
the credibility of the witnesses testifying to that fact, and
Mr. Cohns' attorney aggressively cross-examined on the
issue (Id.). In addition, Judge Harris found that
Mr. Cohns failed to establish that, even had the alleged
error occurred, such withholding amounted to a constitutional
deprivation (Id.). Accordingly, Judge Harris found
no merit in Mr. Cohns' third and fourth claims and
recommended their dismissal (Id.).
Mr. Cohns' Objections
Court writes to address Mr. Cohns' objections (Dkt. No.
22). As to his first claim, Mr. Cohns argues that the
Arkansas Court of Appeals acknowledged the merits of his
claim but avoided and failed to address them (Id.,
at 2). Accordingly, Mr. Cohns asserts that the state court
failed to conduct a proper adjudication on the merits as
required by 28 U.S.C. § 2254 (Id.). Mr. Cohns
asserts that the merits of his double jeopardy claim are that
the trial court declared mistrial on its own motion without
the required “overruling necessity” required by
the Arkansas Rules of Criminal Procedure and against the
objections of defendant and the State (Id.).
Findings and Recommendations expressly quote the Arkansas
Court of Appeals' rebuttal of this argument (Dkt. No. 21,
at 3-7). The Arkansas Court of Appeals undertook de
novo review of the trial court's decision that Mr.
Cohns' protection against double jeopardy was not
violated, and the appellate court afforded no deference to
the trial court's determination. See Cohns, 516
S.W.3d at 792 (citing Shelton v. State, 326 S.W.3d
429 (Ark. 2009)). The appellate court noted that under
Arkansas law “a former prosecution is an affirmative
defense to a subsequent prosecution for the same offense if
the former prosecution was terminated without the express or
implied consent of the defendant after the jury was sworn,
unless the termination was justified by overruling
necessity.” Id. at 792 (citing Ark. Code Ann.
§ 5-1-112(3)). However, the appellate court also noted
that “a defendant's consent to the termination of
the trial” provides grounds for such termination and
dispenses with the requirement of “overruling
necessity.” Id. at 793 (citing Phillips v.
State, 992 S.W.2d 86 (Ark. 1999)).
appellate court determined that, “[w]hen defense
counsel refuses to consent to a mistrial but clearly
indicates an unwillingness to continue the trial, the
defendant can be said to have consented to discontinuance of
the trial.” Id. (citation omitted). The
appellate court found that the record demonstrated that Mr.
Cohns' counsel evidenced his consent to terminate the
proceedings by unequivocally stating that he could not go
forward with the trial, held that there was no constitutional
double-jeopardy violation, and ruled that the trial court
committed no error in denying appellant's motion to
dismiss. Id. Despite Mr. Cohns' objection, this
Court agrees with Judge Harris and the Arkansas Court of
Appeals in finding that the merits of Mr. Cohns' first
claim were addressed and adjudicated by the state court.
this finding, Mr. Cohns raises a related objection regarding
his first claim and argues that the appellate court wrongly
concluded that Mr. Cohns' counsel consented to
terminating the proceedings and that the Findings and
Recommendations adopt this false conclusion (Dkt. No. 22, at
3-4). In support of this argument, Mr. Cohns highlights
Justice Josephine Linker Hart's dissent from the Arkansas
Supreme Court's denial of review of his case (Dkt. Nos.
10-22; 22, at 4). See Cohns v. State, 2017 Ark. 187,
2017 WL 2197758 (Ark. 2017). The Court has reviewed both
Justice Hart's dissent, the relevant underlying
transcripts from the trial court, and the Arkansas Court of
Appeals' decision (Dkt. Nos. 10-6, 10-22). See
Cohns, 516 S.W.3d at 789. The Court agrees with Judge
Harris' findings on this objection, as well. The Court
must “presume that the state court's findings are
correct, ” and Mr. Cohns “bears the burden of
rebutting that presumption by clear and convincing
evidence.” Ervin v. Bowersox, 892 F.3d 979,
985 (8th Cir. 2018) (citing 28 U.S.C. § 2254(e)(1)).
“Moreover, ‘[t]he ...