Fletcher v. Kelley

RODNEY STEVEN FLETCHER, SR. PETITIONER v. WENDY KELLEY, Director of theArkansas Department of Correction RESPONDENT

CASE NO. 5:16CV00012 SWW/PSH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

April 25, 2016

PROPOSED FINDINGS AND RECOMMENDATION

INSTRUCTIONS

The following recommended disposition has been sent to United States District Court Judge Susan Webber Wright. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court Clerk within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

DISPOSITION

Rodney Steven Fletcher, Sr., ("Fletcher") seeks a writ of habeas corpus pursuant to 28 U.S.C. §2254. He is currently in the custody of the Arkansas Department of Correction (ADC) following a 2012 jury trial in the Circuit Court of Fulton County on the charges of commercial burglary, theft of property, and fraud. He was sentenced to 30 years of imprisonment for commercial burglary, 40 years for theft of property, and 30 years for fraud, with the sentences to be served consecutively. On direct appeal, Fletcher contended the jury's verdict was not supported by sufficient evidence, as the prosecution failed to prove he was the person who committed the crimes. The direct appeal was unsuccessful. Fletcher v. State, 2014 Ark. App. 50. Fletcher subsequently sought Rule 37 relief, filing a February 2014 petition with the trial court alleging numerous instances of ineffective assistance of counsel. Specifically, Fletcher argued his counsel was ineffective because: (1) his speedy trial rights were violated; (2) his attorney failed to object and obtain a ruling when a witness testified Fletcher had previously been on parole; (3) the prosecution failed to comply with discovery obligations, causing the exclusion of exculpatory evidence; (4) the attorney failed to thoroughly investigate the charges and possible defenses; and (5) the sentences he received were illegal under Arkansas law. The trial court denied the Rule 37 petition, and the Supreme Court of Arkansas affirmed the denial in March 2015. Fletcher v. State, 2015 Ark. 106.

Fletcher, in his federal habeas corpus petition, claims:

(1) there was insufficient evidence to support his convictions;

(2) the sentences he received were excessive and illegal;

(3) the prosecution failed to provide discovery to the defense concerning a serology report which could have been exculpatory;

(4) the trial court erred in not granting a mistrial when a witness testified that Fletcher was on parole, in violation of the trial court's ruling on a motion in limine; and

(5) Fletcher's right to a speedy trial was violated.

Respondent Wendy Kelley ("Kelley") contends grounds 3 and 5 are not properly before this Court due to Fletcher's failure to adequately raise these claims in state court, as required by Wainwright v. Sykes, 433 U.S. 72 (1977), and its progeny. By Order of the Court dated February 16, 2016, Fletcher was notified of his opportunity to explain why these grounds should not be dismissed due to procedural default. He responded to the Court's Order, filing a supplemental pleading on February 26. In this pleading, Fletcher asserted any procedural failure in state court was due to ineffective assistance of counsel in his Rule 37 proceeding. Fletcher also asserted "a free standing claim of actual innocence." Docket entry no. 10, page 2.

When examining procedural default issues, we are aware of Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Trevino v. Thaler, 133 S.Ct. 1913 (2013), cases dealing with the the provision of effective counsel in post-conviction proceedings, such as Rule 37 Arkansas proceedings. It is clear that the absence of counsel, or ineffective counsel, in a Rule 37 proceeding may amount to cause forFletcher's procedural default.

Rather than exploring the intricacies of the Arkansas procedural rules and considering the current state of the law as it relates to Martinez and Trevino, supra, we find it more appropriate and a better use of judicial resources to proceed to the merits of the claims advanced by Fletcher. We are guided by the following language of the Eighth Circuit Court of Appeals:

In cases such as this, it might well be easier and more efficient to reach the merits than to go through the studied process required by the procedural default doctrine. Recent commentary points up the problems with the cause and prejudice standard:

[T]he decision tree for habeas review of defaulted claims is intricate and costly. . . . In essence, Sykes and Strickland require habeas lawyers and federal judges and magistrates to work through the equivalent of a law school exam every time a defendant tries to escape procedural default.

McKinnon v. Lockhart, 921 F.2d 830, 833 n.7 (8th Cir. 1990) (quoting Jeffries & Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Corpus, 57 U.Chi.L.Rev. 679, 690 (1990)).

We turn to the merits of Fletcher's claims:

Claim 1 - Insufficient Evidence to Support his convictions: On direct appeal, the Arkansas Court of Appeals examined the evidence adduced against Fletcher. We quote at length from the Arkansas opinion:

Rodney Steven Fletcher, a habitual offender, was charged criminally on multiple counts in connection with a 2010 break-in that occurred at a pharmacy in Salem, Arkansas. A Fulton County jury found him guilty of commercial burglary, theft of property, and fraud. The jury acquitted Fletcher of eighteen counts of possession of a controlled substance with intent to deliver regarding the same incident. The court sentenced Fletcher to thirty years in the Arkansas Department of Correction on the commercial-burglary conviction, forty years on the theft-of-property conviction, and thirty years on the fraud conviction. The fines totaled $35,000. The court ordered that Fletcher's prison sentences run consecutively. We affirm Fletcher's convictions.

I.

The evidence at trial showed that Salem Drug Company, a local pharmacy, was broken into just before 6:00 a.m. on 8 October 2010. Video cameras at the pharmacy recorded the break-in. The video footage showed a masked man with a limp taking several thousand pills from the pharmacy. Store records revealed that $10,200 in cash—and $1300 in customer checks held in a Ziploc baggy-were also missing. At least 3000 hydrocodone tablets were among the missing pills; the total purchase value of the controlled substances taken from the pharmacy wasaround $11,869. The pharmacist who discovered the break-in, Dark York¹, said that she did not know who broke into the store.

Salem's police chief, Al Roark, told the jury that Fletcher came to mind when he watched the video footage of the break-in. Roark said that he had known Fletcher for all of his adult life because Fletcher had been married to his niece; Fletcher also lived close to the burglarized pharmacy, according to Chief Roark. Based on Chief Roark's information, the Arkansas State Police made Fletcher a person of interest. Police officers ultimately found Fletcher at Glen Jackson's house, a place where he was known to stay.

Members of the Jackson family testified during Fletcher's trial. Glen Jackson's son, David Jackson, said that Fletcher had stayed on their couch, left the house around 2:00 a.m. the morning the break-in occurred, and returned before daylight the same day. Glen Jackson also testified that Fletcher stayed with them the night before the burglary. Glen said that he had taken hydrocodone, Zanax, and drank three or four beers the night before the break-in; that he had slept all night; and that Fletcher woke him up around 8:00 a.m. (the morning the burglary happened) because Fletcher wanted to buy some tennis shoes at Walmart. Glen also told the jury that he owned a camouflage-hunting mask and that the police took his hunting mask and pistol when they searched his house.

The search of the Jackson home produced these items: a Ziploc baggy containing twenty four checks made out to Salem Drug Store, a mask, wet pants, an oversized purse with many bottles of prescription pills inside, injectable narcotics, a .45caliber handgun, and boots. Patrolman Johnny Byler testified that when Fletcher turned up at the Jackson home after the police had started investigating, Fletcher held a "wad of cash" and was argumentative. Police officers found $6,350.71 on Fletcher's person; Fletcher told the police it was an inheritance. State Police lead investigator Todd Shaw said that he saw Fletcher walking at the Jackson home with "a limp consistent with the person in the video camera," and that the camouflage-hunting mask and boots the police found in the Jackson home were consistent with the mask and boots the burglar had worn.

Arkansas State Crime Lab chemist Gary Dallas told the jury that the numerous pills the police recovered from the home where Fletcher was staying included hydrocodone and other controlled prescription drugs. Forensic DNA examiner Jennifer Beaty testified that the camouflage-hunting mask the police found contained a "very, very, very tiny amount of DNA," and that she was only able to get a partial profile of the DNA from it. Although Beaty could not say with all scientific certainty that the DNA profile from the mask matched Rodney Fletcher, she told the jury that "you might find one out of 67 million of the Caucasian population have those same areas."

Fletcher moved for directed verdicts at trial, arguing each time that there was insufficient DNA evidence to convict him and that the State failed to prove that he was the person who committed the crimes. Fletcher raises these same points here.

We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Hunt v. State, 354 Ark. 682, 128 S.W.3d 820 (2003). When reviewing this challenge we determine whether

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