Reynolds v. Payne
Filing
7
FINDINGS AND RECOMMENDATION recommending 1 petition for writ of habeas corpus be denied, the case be dismissed with prejudice, and the certificate of appealability be denied. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Patricia S. Harris on 06/06/2024. (llg)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
CASEY REYNOLDS
VS.
PETITIONER
NO. 4:24-CV-00010 JM/PSH
DEXTER PAYNE, DIRECTOR,
Arkansas Division of Correction (“ADC”)
RESPONDENT
FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The following recommended disposition has been sent to United States
District Judge James Moody, Jr. 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 within fourteen (14) days of this Recommendation. By not objecting,
you may waive the right to appeal questions of fact.
DISPOSITION
Petitioner Casey Reynolds (“Reynolds”) seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Reynolds is in ADC custody following his 2018
convictions in White County for two counts of kidnapping, aggravated assault on a
family or household member, and third-degree domestic battery. He received a
total term of 46 years’ imprisonment. Reynolds began the process of direct appeal
but then filed a motion to dismiss the appeal.
That motion was granted in
November 2018.
He then sought postconviction relief pursuant to Ark. R. Crim. P. 37.1,
alleging four instances of ineffective assistance of trial counsel: (1) failure to
effectively communicate a plea offer and unreasonably recommending that
Reynolds reject the offer; (2) failure to investigate and present evidence
impeaching the credibility of the victims; (3) failure to investigate and present
evidence about the contents of Reynolds’ lost cell phone; and (4) failure to
adequately cross-examine the victims.
The trial court conducted an evidentiary hearing and subsequently denied
Rule 37 relief. Reynolds appealed, and the Arkansas Court of Appeals affirmed
the trial court in a March 1, 2023 opinion. Reynolds v. State, 2023 Ark. App. 106.
Reynolds now seeks federal habeas corpus relief advancing the four claims
of ineffective assistance raised in his Rule 37 proceeding. Respondent Dexter
Payne (“Payne”) has responded, contending the petition should be dismissed with
prejudice. Doc. No. 6. The Court agrees, and recommends dismissal and denial of
relief.
Analysis
When the state court has ruled on the merits of a petitioner’s claims, as with
all four claims advanced by Reynolds, a writ of habeas corpus may not be granted
unless the state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court” or the state court’s decision “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court.” 28 U.S.C. §
2254(d)(1), (2). The United States Supreme Court offers guidance in interpreting
the statute:
A state court decision will be “contrary to” our clearly established
precedent if the state court either “applies a rule that contradicts the
governing law set forth in our cases,” or “confronts a set of facts that
are materially indistinguishable from a decision of this Court and
nevertheless arrives at a result different from our precedent.” A state
court decision will be an “unreasonable application of” our clearly
established precedent if it “correctly identifies the governing legal rule
but applies it unreasonably to the facts of a particular prisoner’s case.”
. . . Distinguishing between an unreasonable and an incorrect
application of federal law, we clarified that even if the federal habeas
court concludes that the state court decision applied clearly
established federal law incorrectly, relief is appropriate only if that
application is also objectively unreasonable.
Penry v. Johnson, 532 U.S. 782, 792-93 (citations omitted).
The Arkansas Court of Appeals ably summarized the trial and the Rule 37
proceedings, cited the legal standard to be met, and addressed Reynolds’
arguments:
I. Reynolds's Trial
Reynolds was charged with committing two counts of kidnapping, one
count of aggravated assault on a household or family member, and
one count of third-degree domestic battery against two victims, DS
and BB, both former girlfriends.
At Reynolds's trial, BB, who is 5’1” and in June 2017 weighed 120
pounds, offered the following testimony. [in a footnote the opinion
cited Reynolds’ trial testimony that he was a bodybuilder at the time
of his arrest]. In June 2017, she lived with Reynolds but was planning
to leave him because he was cheating on her and physically,
emotionally, and sexually abusing her. Reynolds controlled her by
taking her phone and car keys, removing the battery from her car, not
allowing her to have any other relationships, and never allowing her to
be alone—even showering with her and remaining in the bathroom
when she was using the toilet. On June 14, her friend, Jennifer Long,
picked her up from Reynolds's house and took her to another friend's
house, which made Reynolds very angry. Reynolds spoke with BB on
the phone and convinced her to come home to pack her things. He
picked her up from the friend's house, but as soon as she went inside
Reynolds's home, he locked the door and told BB to go to the back
room and get undressed. She was afraid he would beat her as he had
done before, so she did as she was told. He locked her in the room and
returned with a bag of zip ties, wire clippers, and a knife. He zip tied
her wrists and ankles and threatened to cut her ear to ear across her
face. He put the wire cutters in her nose and applied pressure and told
her he was going to “wreck her face.” At that point, Reynolds had a
seizure and lost consciousness, which he had done before when he
was “emotionally stressed.” BB eventually made it to the bathroom to
get nail clippers to cut the zip ties (she was afraid she would wake him
if she took the wire clippers out of his hand.) She clipped the zip ties,
4
found Reynolds's phone in the kitchen, and called 911. Reynolds
recovered from his seizure and entered the kitchen. BB told Reynolds
she was calling an ambulance for him, which angered him again, and
he had another seizure. He recovered from the second seizure, and
slammed BB against the ground and the wall. He put a gun in her
mouth and told her that he was going to kill her and himself. Before
the police arrived, he punched himself to make it look like she had hit
him. When the police arrived a few minutes later and knocked on the
door, she ran from the home. Reynolds was arrested, and BB
reentered the home and gathered her things to leave. Reynolds had
hidden her keys and phone, but eventually she found them and left. A
police officer told her to take Reynolds's phone “to look through” it to
try to find evidence against him. BB could not use the phone, and she
gave it to “a friend of a friend” to fix it so she could view the contents
of the phone. She never saw the phone again.
On cross-examination, trial counsel pointed out the following
inconsistencies in BB's testimony. In her statement to police, she did
not mention that Reynolds told her take off her clothes or that he put a
gun in her mouth (she said he put it to her head) or that he threatened
to kill himself as well. BB did not tell officers that Reynolds hit
himself to make it look like she had hit him, and she did not contradict
him when he told the police she had hit him. When she filled out a
form to request an order of protection the next day, BB did not state
that Reynolds told her to take off her clothes. BB's recollection of
clipping the zip ties with nail clippers was spotty, and she did not
know if Reynolds had ever been treated for any kind of mental illness.
DS, also a former girlfriend, testified at the trial, and the following
evidence was adduced from her testimony. DS moved in with
Reynolds in January 2017, and he was controlling from the beginning.
Reynolds made her send photos of herself when she left the house to
prove where she was. When she took a lunch break at work and was
able to look at her phone, there would be “ten texts, ten phone calls,
you know, and I'm like crap, he's mad.” Reynolds monitored her
phone, would not allow her to have social media accounts, and
eventually he took her phone away from her and broke it. Reynolds
followed her in his car and drove past her work. He took her keys
from her when she arrived home after work and accused her of
cheating on him if she was late. He forbade her from talking to her
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family and from having friends. During sex he was rough with her and
left bruises on her body, even when she asked him to stop. Reynolds
began physically abusing her, hitting her in the mouth and slapping
her at first, then escalating to punching her. Once, he slammed her
head into the kitchen floor, causing a large knot to form on her head.
Reynolds told DS that he was going to “drain the blood off” with the
needle he used to inject steroids and then put ice on her facial wounds.
He would not allow DS to be alone in the bathroom, and on March 22,
2017, when she locked the bathroom door, he broke the door down.
She burned his arm with a hot curling iron, and he took the curling
iron from her and burned her arm with it. He threatened to insert the
hot curling iron into her vagina. When she told him she was going to
the police, he went into the garage to retrieve a bag of black zip ties
and zip tied her arms and legs to a kitchen chair. He secured a zip tie
across her mouth, and began pinching her thighs hard enough to cause
bruises. To convince Reynolds to let her go, she told him that she
loved him, accepted him as he was, they were both crazy, and “we
could be crazy together.” He released her from the chair, and she went
to work. After speaking to her supervisor, DS went to the police
station and filed a report against him, ending their relationship.
On cross-examination, trial counsel questioned DS about the
inconsistencies in her account of the abuse, including that she did not
mention any threat to burn her vagina with the curling or having a zip
tie across her mouth in her report to the police. Counsel also crossexamined DS regarding her account of being zip tied to the chair,
pointing out the difficulty of zip tying someone while also holding
them still. Counsel questioned DS about the length of time they were
together before she left, why she did not tell anyone about the abuse,
and an incident when she and Reynolds and his new girlfriend were at
a park at the same time, and DS appeared to be stalking and harassing
them.
Sergeant Heather King, the officer who took DS's statement on March
22, testified that when DS came in the station, she was upset and
“didn't know where to begin, where to start.” Sergeant King took her
statement that she had been beaten and held against her will and took
photographs of DS's injuries. The injuries included bruises on her
face, back, thighs, and lower leg; narrow ligature marks around her
6
wrists; and a burn mark on her arm. DS did not tell Sergeant King
about burning Reynolds with the curling iron.
Detective Heather Meadows of the White County Sheriff's Office
testified that she also saw DS on March 22 and helped her obtain a
protective order. DS was “very emotional” and “visibly shaken,” and
Meadows explained that DS's injuries were “very commonly the type
of injury used in a defense, you know, trying to keep somebody from
hurting you.” She also noted the burn on DS's arm and the ligature
marks.
Reynolds testified about the night in June 2017 when the police came
to his home and arrested him. He testified that BB's friend, Jennifer
Long, came to the house with a gun and threatened him, and BB left
with her. Later, after talking, he and BB agreed to work it out, and he
picked her up from another friend's house. Reynolds denied that he
held BB against her will when she returned with him to his home. He
admitted that he took her phone and her keys because “she had called
without me knowing and brought somebody over that was threatening
my life, Ms. Long.” He explained that BB willingly gave him her keys
(which were on a pepper spray key chain) and phone, and he hid
them. Reynolds testified that when the police arrived later that
evening, he told them that BB hit him in the face, but they only
arrested him and let her go. Reynolds contended that BB stole his
phone, which was “full of evidence against [DS] and [BB] including
“death threats, of violence, of everything that's happened between
them, of both of them hitting me, both of them—I've caught [DS]
making death threats on that phone.” Reynolds explained that when
they arrived home, before the police came, he recorded a video of
them talking at the kitchen table. He testified that the video would
have shown that she threatened him with serious bodily harm, at
which point he “jumped up from the table.” She chased him down the
hall with a knife, and he wrestled it away from her. BB then allowed
him to zip tie her, and he stated that he had zip ties for his drum set.
Reynolds asserted that the photographs of the zip ties on the floor of
the bedroom and elsewhere were “staged” by BB and her mother
hours later when he was in jail. He stated that he never saw the phone
again after that night, but there were phone records showing that BB
used the phone and impersonated him on Facebook. Reynolds also
explained that he and BB engaged in consensual bondage and rough
7
sex. He denied ever having a seizure but stated that he felt light
headed that evening, and “she came around behind [him] and hit [him]
in the jaw and knocked [him] into the floor, and [he] passed out for
probably five minutes or so.” When he awoke, she was on the phone
with the police. He stated that the only mental-health issue he had was
depression from being mentally abused by BB and DS. Reynolds
testified that, despite the order of protection, BB still tried to contact
him and harassed him. DS also harassed him and followed him in her
car and followed him at the park, trying to provoke him.
Reynolds testified that he and DS also engaged in consensual bondage
and rough sex. He stated that DS mentally abused him during their
relationship, and she broke her own phone when she threw it at him.
He explained that he had requested that she let him look through the
phone when he tested positive for an STD and suspected her of
cheating, so she threw the phone. He explained that DS was in the
bathroom with the door locked, torturing his dog because she was
angry with him, and he broke the door down because he could hear his
dog crying out. When he kicked the door down, the curling iron fell
on her and burned her. He denied threatening her with the curling
iron. He denied refusing to allow either of his ex-girlfriends privacy in
the bathroom. Reynolds stated that DS had gotten a black eye from
roughhousing and wrestling, which they both enjoyed, and that she
lied to the police that he had hit her. He stated that the ligature marks
she showed to the police occurred during consensual rough sex days
before.
At the conclusion of the evidence, the jury found Reynolds guilty of
two counts of kidnapping, one count of aggravated assault on a
household or family member, and one count of third-degree domestic
battery and was sentenced to an aggregate term of forty-six years’
incarceration in the Arkansas Department of Correction.
II. Rule 37 Petition
On January 14, 2019, Reynolds timely filed in the trial court a petition
for postconviction relief under Arkansas Rule of Criminal Procedure
37.1. With leave of the court, he filed an amended petition on April
25, 2019. In his petition, he alleged trial counsel was ineffective
because counsel failed to (1) adequately communicate regarding the
8
State's plea offer and unreasonably recommended that he reject the
offer; (2) move to sever charges under Ark. R. Crim. P. 22.2; (3)
investigate and present a defense regarding the charges related to DS;
[claims 2 and 3 were withdrawn] (4) investigate and present evidence
impeaching DS's and BB's credibility; (5) investigate and present
evidence regarding the content of the lost cell phone; and (6)
adequately cross-examine BB and DS.
On January 30, 2022, the court held an evidentiary hearing on the
petition. Trial counsel, John Wesley Hall, testified that he received a
plea offer of ten years’ incarceration from the State. Hall stated that he
emailed the plea offer to Reynolds and believed that he told Reynolds
about it over the phone. In the email, Hall told Reynolds, “Here's your
bullshit plea offer. I say no.” Reynolds responded, “I agree with that.
If you feel confident too let's say no. It seems to me there [sic] trying
to back up and not go to trial.” Hall testified that Reynolds was
adamant that he would not plea to something he did not do and
insisted on his innocence. Hall recalled meeting with Reynolds, his
girlfriend Felicia French, and his mother to prepare Reynolds for trial
and explain the State's case against him. Hall stated that he makes a
practice of explaining eligibility for parole, and he “soft sell[s]” plea
offers because he believed “in client determinations. It's their life and
when they insist upon innocence, I don't challenge them. I just tell
them it's going to be tough for a jury to believe, if that's the case, ...
some lawyers try to brow beat clients into pleas, and I don't.” Hall
explained that Reynolds “always insisted upon his innocence. If there
was the slightest crack in that façade, I would've gone for it and tried
to get him to come to that realization.” Hall testified that Reynolds
knew that the two victims, DS and BB, were going to testify that he
abused them and dominated them, and they “talked at length” what
the women had said and what the videos showed. Hall stated that he
remembered explaining that the White County venue was more
conservative than Pulaski County, and the jury was likely to view
bondage sex negatively. Hall recalled emails about negative events
involving the victims and others and previous consensual bondage sex
between Reynolds and DS and BB. Hall explained, “I didn't ask the
women [about] that for fear they would just deny it.” Hall stated that
there was a photograph of DS stalking Reynolds, and he could have
called Reynolds's girlfriend, French, to corroborate the meaning of the
photograph but did not because her testimony would have been self9
interested, and she would have been “seriously impeached.” Hall
testified that he did not try to have Reynolds's medical records
admitted showing his “struggle with anxiety, depression and
insomnia, caused by stress from the girls” because he did not believe
it would change the outcome of the trial. Hall explained that there
were emails describing BB's prior bad behavior—faking a pregnancy
and a miscarriage, using Reynolds's cell phone while he was in jail to
impersonate him on social media and in texts, and violating the nocontact order between hers and Reynolds. Hall explained that the jury
would have considered bringing up the miscarriage evidence a “really
cheap shot.” He also explained that the no-contact order was on
Reynolds, not BB, and it is common practice to violate no-contact
orders and not particularly persuasive to juries. Ultimately, Hall
decided not to elicit this potential testimony from the witnesses
because “then the State could have recalled the two women, and they
could have been crossed again—on rebuttal.” Hall pointed out that
Reynolds had already testified to the above information, and by not
questioning the women about it, Reynold's testimony was unrebutted.
Hall explained that, regarding the photographic evidence of
consensual bondage between Reynolds and his ex-girlfriends possibly
contained on the missing cell phone, he told Reynolds how to
“download it from the cloud and get it back because from the cloud
you can recover everything but the texts messages if it is an iPhone.”
Hall stated that in any event, DS and BB would have simply denied
they had engaged in rough sex with Reynolds, or the jury would infer
that just because it was consensual in the past did not mean that they
were not victims of the crimes Reynolds was accused of. “Getting
them to admit that there was bondage sex in the past wouldn't make
the pictures of it relevant, it would be more prejudicial than relevant
then.”
Felicia French testified that she was present when Hall and Reynolds
discussed the plea offer, and she remembered “Casey being willing to
take a plea deal, just not wanting to serve a life sentence.” French
stated that she heard Reynolds state between ten to fifteen times that
he would take the plea. French stated that she never heard Hall
explain parole eligibility, and she testified that Hall mentioned that
White County is conservative and that the jury would likely find the
topic of bondage sex distasteful.
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Reynolds testified at the hearing that he told Hall multiple times that
he “was willing to take the plea deal if there was any chance that we
couldn't win this.” Reynolds stated that Hall never explained parole
eligibility or “what would happen if we failed at trial. When I saw ten
years, I thought it mean ten full years on there.” Reynolds recalled
that it was Hall's confidence of success and his own lack of
understanding of parole eligibility that convinced him to reject the
plea offer. He stated that he definitely would have accepted the plea if
he had known he might serve only one-sixth of his sentence. Reynolds
also testified about Hall's failure to cross-examine BB about his cell
phone that she took the night he was arrested. He explained that there
were many “pictures of [consensual] sexual activity with bondage.
They were violent—,” and there was video of DS threatening him. He
explained that Hall had not investigated the contents of the phone
sufficiently and “showed up completely unprepared from everything
we sent him.” [in a footnote, the Court commented the contents of the
cell phone were never retrieved from the cloud, and the phone was
never found]. The trial court held a follow-up hearing at which oral
argument regarding the testimony and evidence adduced at the
evidentiary hearing was discussed.
The trial court denied Reynolds's petition in an order entered
September 17, 2021. Regarding Reynolds's first claim, the trial court
found that trial counsel adequately communicated with Reynolds
about the State's plea offer, finding that trial counsel informed
Reynolds that White County has a large conservative and elderly
population, and “the topic of rough sex and bondage wouldn't be
received well by a jury.” Moreover, the court found, as a resident of
White County, Reynolds should have known that even without
counsel's explaining it to him. The trial court found that Reynolds's
statement that he told trial counsel on numerous occasions that he
wanted to take the plea lacked credibility. The trial court credited trial
counsel's testimony that Reynolds unequivocally maintained his
innocence and noted that Reynolds still did not admit guilt. The trial
court relied on trial counsel's testimony that he explained parole
eligibility (though it is not required that counsel do so) and that the
first offer of ten years was reasonable if Reynolds was guilty. The
State made a second offer at the jury trial, and Reynolds declined the
offer and maintained his innocence. The trial court concluded that trial
counsel properly relayed the plea offers to Reynolds and advised him
11
of the evidence against him, and Reynolds failed to meet his burden of
proving that because of trial counsel's error, he was denied a fair trial.
Next, the trial court rejected Reynolds's second claim (on appeal), that
trial counsel was ineffective because he failed to call as witnesses
Lucas Butler, Will Cleveland, Brandon Mooney and Felicia French,
who would impeach DS and BB. The trial court found that the
eighteen related allegations were not examples of ineffective
assistance of counsel. One category of witness testimony related to the
contents of Reynolds's missing cell phone. The trial court found that
this evidence was testified about to the extent possible, or the
proposed witnesses had no knowledge of the contents of the cell
phone. Another category of testimony, BB's and DS's prior
impeachable behavior and the testimony regarding the zip ties, was
testified to at trial, considered a “cheap shot” by trial counsel that
would not be well received by the jury, or was irrelevant to the issues
presented at trial. Medical evidence that Reynolds had never suffered
a seizure, as BB claimed he had, was elicited through Reynolds's
testimony, and it was not erroneous to refrain from delving further
into this information. The trial court held that the calling of witnesses
is generally a matter of trial strategy, and Reynolds had not
established that counsel was ineffective for not calling a named
witness. The trial court relied on the summary of the testimony at trial
and evidence that would have been admissible and found that
Reynolds did not prove that any prejudice occurred because of
counsel's decision not to call certain witnesses.
The trial court also denied Reynolds's third claim (on appeal), that
trial counsel was ineffective because he failed to investigate and
present evidence regarding certain exculpatory content of Reynolds's
cell phone. The trial court noted that the phone had been lost and had
never been in the State's possession as evidence. The court found that
trial counsel told Reynolds and his girlfriend how to search the cloud
for the cell phone's content that might be stored there, and counsel had
no obligation to search for evidence the police investigators had not
found. Moreover, trial counsel examined BB, eliciting from her that
she had possessed the phone after Reynolds's arrest, she had given it
to someone to fix, and she never saw the phone again. At the Rule 37
hearing, French and Reynolds's mother both testified that they had no
firsthand knowledge of the content of the phone. The court found that
12
Reynolds failed to meet his burden of proof that counsel's conduct fell
below an objective standard of reasonableness or committed an error
that created such prejudice that Reynolds was denied a fair trial.
The trial court next considered Reynolds's fourth claim (on appeal),
that trial counsel was ineffective for failing to adequately crossexamine DS and BB regarding consensual bondage sex that they had
engaged in with Reynolds. The court rejected this claim, finding that
the extent of cross-examination was a matter of trial strategy, and
furthermore, there was testimony regarding DS and BB having
engaged in rough sex with Reynolds.
The trial court entered an order denying the petition. Reynolds timely
filed his notice of appeal, and this appeal followed.
III. Discussion
A. Standard of Review and Applicable Law
“On appeal from a trial court's ruling on a petitioner's request for Rule
37 relief, this court will not reverse the trial court's decision granting
or denying postconviction relief unless it is clearly erroneous. Kemp v.
State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). A finding is
clearly erroneous when, although there is evidence to support it, the
appellate court after reviewing the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74.
“The benchmark for judging a claim of ineffective assistance of
counsel must be ‘whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on
as having produced a just result.’ Strickland [v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)].” Henington v. State,
2012 Ark. 181, at 3–4, 403 S.W.3d 55, 58. Pursuant to Strickland, we
assess the effectiveness of counsel under a two-prong standard. First,
a petitioner raising a claim of ineffective assistance must show that
counsel made errors so serious that counsel was not functioning as the
“counsel” guaranteed the petitioner by the Sixth Amendment to the
United States Constitution. Williams v. State, 369 Ark. 104, 251
S.W.3d 290 (2007). A petitioner making an ineffective-assistance-of13
counsel claim must show that his counsel's performance fell below an
objective standard of reasonableness. Springs v. State, 2012 Ark. 87,
387 S.W.3d 143. A court must indulge in a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance. Id.
Second, the petitioner must show that counsel's deficient performance
so prejudiced petitioner's defense that he was deprived of a fair trial.
Id. The petitioner must show there is a reasonable probability that, but
for counsel's errors, the fact-finder would have had a reasonable doubt
respecting guilt, i.e., the decision reached would have been different
absent the errors. Howard v. State, 367 Ark. 18, 238 S.W.3d 24
(2006). A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial. Id. Unless a
petitioner makes both showings, it cannot be said that the conviction
resulted from a breakdown in the adversarial process that renders the
result unreliable. Id. Additionally, conclusory statements that counsel
was ineffective cannot be the basis for postconviction relief. Anderson
v. State, 2011 Ark. 488, 385 S.W.3d 783. As set forth below, we find
that the trial court did not clearly err in denying Reynolds's Rule 37
petition and affirm.
1. Failure to adequately communicate regarding the plea offer
Defendants have a Sixth Amendment right to counsel, and that right
extends to the plea-bargaining process. Lafler v. Cooper, 566 U.S.
156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). Where trial counsel's
performance is deficient in recommending that the defendant reject a
plea offer, the Strickland test is satisfied where the claimant shows a
reasonable probability that, but for the defective performance, there is
a reasonable probability that the plea offer would have been presented
to the court, the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer's terms would have
been less severe than under the judgment and sentence that, in fact,
were imposed. Id. at 164, 132 S.Ct. 1376.
On appeal, Reynolds does not propound the argument that there is a
reasonable probability that, had the plea offer been presented to the
court, the court would have accepted its terms. Instead, Reynolds
focuses strictly on the second prong, that the conviction or sentence
14
would have been less severe under the terms of the plea offer; but
because he fails to address an element of required analysis, we reject
his argument. However, even if Reynolds had addressed the first
prong, his argument still fails. Reynolds has consistently maintained
his innocence, and Hall disputed Reynolds's statement that he told
Hall many times that he would accept the State's offer of ten years.
This court does not assess the credibility of the witnesses. Hoyle v.
State, 2011 Ark. 321, at 6, 388 S.W.3d 901, 906. Conflicts in
testimony are for the fact-finder to resolve, and the court is not
required to believe the testimony of any witness, especially that of the
accused, since he or she is the person most interested in the outcome
of the proceedings. Id. The trial court's denial of relief on this point
was not clearly erroneous.
2. Failure to investigate or call witnesses to challenge BB's and DS's
credibility
With respect to an ineffective-assistance-of-counsel claim regarding
the decision of trial counsel to call a witness, such matters are
generally trial strategy and outside the purview of Rule 37.1. Banks v.
State, 2013 Ark. 147. When a petitioner alleges ineffective assistance
of counsel for failure to call witnesses, it is incumbent on the
petitioner to name the witness, provide a summary of the testimony,
and establish that the testimony would have been admissible into
evidence. Wertz v. State, 2014 Ark. 240, at 4, 434 S.W.3d 895, 900
(citing Moten v. State, 2013 Ark. 503 (per curiam)). To demonstrate
prejudice, the petitioner is required to establish that there was a
reasonable probability that, had counsel performed further
investigation and presented the witness, the outcome of the trial would
have been different. Hickey v. State, 2013 Ark. 237, 428 S.W.3d 446.
Trial counsel must use his or her best judgment to determine which
witnesses will be beneficial to the client. Id. Nonetheless, such
strategic decisions must still be supported by reasonable professional
judgment. Id. Finally, “[w]hen assessing an attorney's decision not to
call a particular witness, it must be taken into account that the
decision is largely a matter of professional judgment which
experienced advocates could endlessly debate, and the fact that there
was a witness or witnesses that could have offered testimony
beneficial to the defense is not in itself proof of counsel's
15
ineffectiveness.” Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233,
236 (1996).
Here, counsel testified that he chose not to call four witnesses that
Reynolds identified who would have testified that DS and BB were
the abusers in their relationships and harassed him after they broke up.
Hall explained that if he had called Reynolds's girlfriend to testify
regarding the victims’ alleged stalking of Reynolds, she would be
seriously impeached. Hall regarded the testimony that Reynolds
anticipated from some of the witnesses—including that BB faked a
pregnancy and miscarriage—would alienate the jury because it was a
“cheap shot.” Hall considered other evidence as irrelevant, such as
testimony that BB followed him when she had a protective order
against him. He explained that it is common for people to violate
protective orders, and the protective order was against Reynolds, not
BB. Hall stated that he did not call witnesses to testify about the
contents of the cell phone because the proposed witnesses had no
knowledge of the contents of the cell phone. As to the testimony
regarding Reynolds's having never had a seizure, Reynolds had
already testified to this, and the proposed witnesses could not
meaningfully testify on this matter. We cannot conclude that the trial
court was clearly erroneous in determining that counsel's decision was
one of reasonable trial strategy and that appellant therefore failed to
satisfy his burden to prove trial counsel's performance was deficient
under Strickland. Even if trial counsel's tactical choices had been
different with the benefit of hindsight, the fact that the strategy was
unsuccessful does not render counsel's assistance ineffective. VenerosFigueroa, 2021 Ark. App. 144, 623 S.W.3d 122. Accordingly, we
affirm on this point.
3. Failure to investigate and present evidence regarding lost cellphone contents
Counsel has a duty to make a reasonable investigation or to make a
reasonable decision that makes particular investigations unnecessary;
but where a petitioner under Rule 37.1 alleges ineffective assistance
for failure to perform adequate investigation, he must delineate the
actual prejudice that arose from the failure to investigate and
demonstrate a reasonable probability that the specific materials that
would have been uncovered with further investigation could have
16
changed the trial outcome. See Hickey, 2013 Ark. 237, 428 S.W.3d
446; see also State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830. The
burden is entirely on the claimant to provide facts that affirmatively
support his or her claims of prejudice; neither conclusory statements
nor allegations without factual substantiation are sufficient to
overcome the presumption that counsel was effective, and such
statements and allegations will not warrant granting postconviction
relief. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam).
Hall testified that he told French and Reynolds how to retrieve cellphone contents from the cloud. The cell phone was not in the State's
possession, and there was testimony that the phone had been stolen or
lost and was irretrievable. At trial, Hall cross-examined BB about the
cell phone, and she testified that she took the phone the night of
Reynolds's arrest, gave it to a friend of a friend to try to obtain the
information on the phone, and she never saw the phone again.
Reynolds testified on direct examination that there were photographs
and texts on the phone that would show that he and the victims
engaged in consensual rough sex, and the victims physically abused,
threatened, and harassed him. The trial court found that
[t]his court is unaware of any requirement that defense
counsel must track down and locate a phone or any other
evidence that is not in possession of the State or any of
the parties in the case. There was no more investigation
that Mr. Hall could have done to obtain the content of the
phone.
The trial court also found that at the trial, Hall examined one of the
proposed witnesses regarding the phone, and he “provided no firsthand knowledge of the contents of the phone” as was true of the
remainder of the witnesses. The court found that neither the cell phone
“nor its content was available to be introduced” and Reynolds did not
meet the burden of proving that Hall's conduct fell below an objective
standard of reasonableness or that the outcome of the trial would have
been different but for Hall's error. We agree and find that the trial
court did not clearly err in denying Reynolds's petition on this basis.
17
3. Failure to adequately cross-examine witnesses
In Reynold's final point on appeal, he alleges error in the trial court's
finding that counsel was not ineffective for failing to vigorously crossexamine the victims regarding their engagement in consensual rough
sex with him when they were together. Reynolds alleges that Hall
should have elicited their corroborating testimony that they willingly
engaged in bondage sex with him, assuming they would admit to it.
The trial court addressed this issue in its order, finding that Hall had
cross-examined DS and BB, and there was not a reasonable
probability that more aggressive cross-examination would have
changed the outcome of the trial.
Here counsel testified that he chose not to further cross-examine DS
or BB because if he did not question them about their sexual habits
with Reynolds, his testimony would remain unrebutted. Moreover,
Hall explained, there was no guarantee that either woman would agree
that they willingly engaged in rough sex with Reynolds or that the
jury would infer that because they engaged in rough sex with
Reynolds at one time in their relationship, the crimes he was accused
of did not occur. Hall's decision to forgo a more aggressive crossexamination was a part of his overall defense strategy to provide an
alternate explanation for BB's and DS's testimony regarding physical,
mental, and sexual abuse and kidnapping.
As in the previous point, to overcome the presumption that counsel's
decision was based on reasonable professional judgment and satisfy
the second prong of the Strickland test, appellant must have identified
specific inconsistencies that were sufficient to alter the outcome of the
trial. See Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007). We
cannot say that the trial court clearly erred in finding that counsel's
decision not to more aggressively cross-exam the witnesses was not
sufficient to alter the outcome of the trial or that counsel was not
ineffective for failing to vigorously cross-examine the victims on their
prior bad behavior or consensual rough sex; therefore, Reynolds has
not demonstrated error in the trial court's denial of postconviction
relief, and we affirm on this point as well.
Reynolds v. State, 2023 Ark. App. 106, 2–21.
18
There is no dispute that the “clearly established Federal law” in this instance
is Strickland v. Washington, 466 U.S. 688 (l983), requiring a petitioner to prove
that (l) his attorney's actions were unreasonable when viewed in the totality of the
circumstances; and (2) he was prejudiced because there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the trial would have been
different. The Arkansas Court of Appeals specifically cited Strickland in its ruling.
Having carefully reviewed the trial transcript, the Rule 37 transcript, the trial
court’s Rule 37 decision, and the thorough Arkansas Court of Appeals’ decision,
the Court concludes the state court decision was not contrary to, or an
unreasonable application of, Strickland.
The Court is mindful that factual
determinations made in state court are presumed to be correct, and Reynolds bears
the burden of overcoming this presumption of correctness “by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1). Thus, the credibility assessments of the
witnesses1 who testified at the Rule 37 hearing are presumed correct unless
Reynolds overcomes these findings by clear and convincing evidence.
See
Thompson v. Keohane, 516 U.S. 99, 110-11 (1995). He fails in this regard.
Some examples of the numerous credibility determinations made by the trial court: “The
defendant now testifies that he told Mr. Hall he would have taken a plea on numerous
occasions. The Court finds the defendant’s testimony uncredible.” Doc. No. 6-6, pages
98-99. “This Court finds that Mr. Hall did properly relay the plea offers to the defendant.
That Mr. Hall advised the defendant of what testimony and evidence would be presented
at the jury trial. That Mr. Hall advised the defendant not to take the plea based on the
defendant’s defense of innocence. . . This Court does not find the defendant’s testimony
credible.” Doc. No. 6-6. Pages 100-101.
1
19
Reynolds contends the Arkansas Court of Appeals’ decision was wrong and
unreasonable, which the Court construes as an alleged violation of 28 U.S.C. §
2254(d)(2) – 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.”
The Court does not agree.
While the credibility of the two victims and Reynolds was critical, other
evidence was also compelling. Photographs of the injuries to B.B. and D.S. were
weighed by the jury. Reynolds’ mug shot was also introduced, and he maintained
that his eye was almost swollen shut because B.B. had hit him. Heather Meadows,
White County Sheriff’s Office, with almost ten years’ experience as a sexual
assault detective, described D.S. as “visibly shaken . . . very scared . . . very small .
. . covered in bruises . . . had a huge black eye.” Doc. No. 6-2, page 309.
Meadows observed ligature marks and a large burn and described the wounds as
defensive in nature.
Regarding credibility, Hall testified at the Rule 37 hearing that Reynolds
“testified for a long time and I thought he was fairly credible.” Doc. No. 6-7, page
149. Among other things, Reynolds, who was 28, stated “I’ve only had three loves
in my life” – B.B., D.S., and his current fiancé.
Doc. No. 6-2, page 330.
According to Reynolds, all three loves shared an interest in rough sex. The jury
20
did not embrace this testimony as an explanation for the restraint of the victims or
the injuries, returning a verdict in 77 minutes. Doc. No. 6-3, pages 123-125.
Finally, Reynolds characterizes the content from the missing cell phone as
exculpatory. This is incorrect. While the content from the phone may have
impugned the victims’ credibility it would not disprove their testimony of the
events from March and June 2017.
As a result, the alleged content is best
described as impeachment, but not exculpatory, evidence.
Conclusion
Strickland, the applicable federal law, demands Reynolds to demonstrate his
trial counsel acted unreasonably and that he was prejudiced by his attorney’s acts
or omissions. This was the standard to be met in state court. In the aftermath of
the state court decisions denying relief Reynolds was then tasked with a higher
standard – showing the Arkansas Court of Appeals decision was contrary to, or an
unreasonable application of, Strickland, or showing the decision was based on an
unreasonable determination of the facts in light of the evidence presented in state
court. The difficulty of meeting this standard was heightened by the presumption
that the state court factual determinations were correct. Reynolds falls short of
carrying his burden. As a result, the Court recommends his petition for writ of
habeas corpus be denied, and the case dismissed with prejudice.
21
Pursuant to 28 U.S.C. § 2253 and Rule 11 of the Rules Governing Section
2554 Cases in the United States District Court, the Court must determine whether
to issue a certificate of appealability in the final order. In § 2254 cases, a certificate
of appealability may issue only if the applicant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(1)-(2). The Court finds no
issue on which petitioner has made a substantial showing of a denial of a
constitutional right. Thus, the Court recommends that the certificate of
appealability be denied.
IT IS SO ORDERED this 6th day of June, 2024.
__________________________________ _
UNITED STATES MAGISTRATE JUDGE
22
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