Harmon v. Payne

Filing 9

RECOMMENDED DISPOSITION recommending 1 Petitioner Rodney Dale Harmon's 2254 Petition for Writ of Habeas Corpus be dismissed with prejudice; and a certificate of Appealability be denied. Objections due within 14 days. Signed by Magistrate Judge Edie R. Ervin on 01/07/2025. (llg)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
RODNEY DALE HARMON
ADC #170497
VS.

PETITIONER

No. 4:24-cv-00718-BRW-ERE

DEXTER PAYNE, Director,
Arkansas Division of Correction

RESPONDENT

RECOMMENDED DISPOSITION
This Recommendation (“RD”) has been sent to United States District Judge
Billy Roy Wilson. You may file objections to all, or part, of this RD. Objections
should be specific, include the factual or legal basis for the objection, and must be
filed within fourteen days. If you do not file objections, you risk waiving the right
to appeal questions of fact and Judge Wilson can adopt this RD without
independently reviewing the record.
I.

Introduction
Rodney Dale Harmon, an inmate at the Ouachita River Correctional Unit of

the Arkansas Division of Correction, filed, through counsel, a petition for habeas
corpus pursuant to 28 U.S.C. § 2254. Doc. 1. Mr. Harmon’s petition should be
dismissed with prejudice because the single claim he presents was adjudicated and

rejected on the merits in state court, and relitigation is precluded under 28 U.S.C. §
2254(d).1
II.

Background
In September 2015, officers with the United States Drug Enforcement Agency

(“DEA”), the Faulkner County, Arkansas Sheriff’s Office, and the Twentieth
Judicial District Drug Task Force executed a search warrant for Mr. Harmon’s home.
Harmon v. State, 2020 Ark. 217, at 1 (2020). The officers found over six pounds of
methamphetamine, multiple firearms, ammunition, baggies, scales, and cash. Id.
Mr. Harmon was charged in the Faulkner County, Arkansas Circuit Court with
multiple drug and gun-related crimes. Id.
In January 2017, while the charges against Mr. Harmon were pending, the
lead prosecutor learned that an HBO film crew, making a documentary called Meth
Storm, was present during the September 2015 search of Mr. Harmon’s home. Id. at
2. The prosecutor notified defense counsel about the film crew’s presence but stated
that she did not have possession of any related footage. Id. The prosecutor gave
defense counsel contact information for a film crew member, the HBO legal
department, and DEA personnel who had possibly approved the presence of the film
crew. Id. at 2-3.

This provision establishes the deferential review applied by federal habeas courts when
reviewing claims resolved on the merits in state court. See infra discussion at Section III.
1

2

Mr. Harmon’s attorney requested and received a trial continuance for the
purpose of obtaining footage of the search, but he was unable to obtain the footage
from HBO. Id. at 2. Mr. Harmon then asked the trial court to compel production of
the footage. Doc. 4-2 at 163-164. The trial court declined to compel the state to
obtain the footage but ordered “whomever” possessed it to turn it over to Mr.
Harmon and his attorney. Doc. 4-2 at 169. That order produced no results.
On the first day of trial, the trial court: (1) denied Mr. Harmon’s motion to
continue trial until such time as the video was obtained; and (2) granted the State’s
motion in limine to prohibit mention of the film crew’s presence during the search.
Harmon v. State, 2020 Ark. 217, at 3. The jury convicted Mr. Harmon of trafficking
methamphetamine within 1,000 feet of a school-bus stop, simultaneous possession
of drugs and firearms, possession of drug paraphernalia, and maintaining a drug
premises within 1,000 feet of a school-bus stop. Mr. Harmon was sentenced to forty
years in prison. Id. at 3-4.
On direct appeal, the Arkansas Court of Appeals reversed Mr. Harmon’s drug
trafficking conviction based on the trial court’s use of a non-model jury instruction,
Harmon v. State, 2019 Ark. App. 572, 11 (2019), but the Arkansas Supreme Court
reversed that decision, reinstating all original convictions. Harmon v. State, 2020
Ark. 217, at 1 (2020).

3

Mr. Harmon filed a petition for postconviction relief under Arkansas Rule of
Criminal Procedure 37 asserting that: (1) the presence of the HBO film crew during
the search of his home violated his Fourth Amendment rights pursuant to Wilson v.
Layne, 526 U.S. 603 (1999); and (2) he received ineffective assistance of counsel
because his attorney failed to identify a Wilson violation and raise it as an
independent ground to suppress the evidence seized in the search of his home.2 Doc.
4-9 at 13-21.
The trial court denied the petition. Doc. 4-9 at 39-40. Mr. Harmon appealed.
On December 7, 2023, the Arkansas Supreme Court affirmed the denial of
postconviction relief, Harmon v. State, 678 S.W.3d 390, 392, 2023 Ark. 179, 2 (Ark.,
2023), and on January 25, 2024, it denied a rehearing and issued its mandate. Doc.
4-12.
On August 23, 2024, Mr. Harmon filed the § 2254 petition now before the
Court, raising a single claim: that his trial counsel rendered ineffective assistance
by failing to move for the suppression of evidence based on the HBO film crew’s
presence during the search of his home.

Mr. Harmon also argued that his trial attorney rendered ineffective assistance by failing
to subpoena HBO to obtain footage of the search. Doc. 4-9 at 17-19. The trial court rejected this
claim (Id. at 40-51), and Mr. Harmon did not pursue it in appealing the trial court’s denial of
postconviction relief. Doc. 4-10 at 3.
2

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On September 19, 2024, Respondent filed a response (Doc. 4) asserting that
the Arkansas Supreme Court’s decision rejecting Mr. Harmon’s claim is entitled to
deference under 28 U.S.C. § 2254(d).
On October 31, 2024, Mr. Harmon filed a reply addressing Respondent’s
arguments for dismissal. Doc. 8.
III.

Discussion
Mr. Harmon raises a single claim: His trial counsel was constitutionally

ineffective for failure to move for suppression of evidence based on the film crew’s
presence during the search of his home “despite being made aware of a flagrant
violation of the Fourth Amendment as construed by a unanimous . . . Supreme Court
in Wilson v. Layne, 526 U.S. 603 (1999).” Doc. 1 at 6. The Arkansas Supreme Court
rejected this claim on the merits on postconviction review.
Respondent argues that habeas relief is precluded under the deferential review
standard for state court decisions mandated by the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), codified at 28 U.S.C. § 2254(d). Section 2254(d) provides
that when a state prisoner’s federal claim has been adjudicated on the merits in state
court, a federal court “shall not” grant an application for habeas relief unless the state
courts’ adjudication: “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the

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Supreme Court; 3 or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.”4 “The question under [the] AEDPA is thus not whether a federal court
believes the state court’s determination was incorrect, but whether that determination
was unreasonable–‘a substantially higher threshold’ for a prisoner to meet.” Shoop
v. Twyford, 142 S. Ct. 2037, 2043 (2022) (quoting Schriro v. Landrigan, 550 U.S.
465, 473 (2007)).
The Arkansas Supreme Court assessed Mr. Harmon’s ineffective assistance
claim according to the standard set forth in Strickland v. Washington, 466 U.S. 668
(1984), which required Mr. Harmon to show that: (1) counsel’s performance was
deficient; and (2) the deficient performance prejudiced his defense. Harmon v. State,
2023 Ark. 179, 4 (2023). “The standards created by Strickland and § 2254(d) are
both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”
Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted).

3

A state court decision is “contrary to” clearly established federal law if the state court
either “arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of
law” or “decides a case differently than [the Supreme Court] has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an
“unreasonable application” of Supreme Court precedent if it “identifies the correct governing legal
principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Id.
4

The state court’s factual findings are subject to a deferential standard of review and
presumed correct unless the petitioner can rebut those findings through “clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); see also James v. Bowersox, 187 F.3d 866, 871 (8th Cir. 1999).

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The Arkansas Supreme Court concluded that Mr. Harmon’s ineffective
assistance claim depended on an overly broad application of Wilson v. Layne, 526
U.S. 603 (1999) and that his trial attorney, who aggressively pursued suppression on
other grounds, did not render ineffective assistance by failing to raise a novel
argument. Harmon v. State, 2023 Ark. at 5 (citing Weaver v. State, 339 Ark. 97, 102
(1999)).
The Arkansas Supreme Court’s decision was entirely reasonable. In Wilson v.
Layne, 526 U.S. 603 (1999), homeowners sued for civil damages, claiming that
officers violated their Fourth Amendment rights by bringing a photographer and
reporter into their home to observe and record the execution of an arrest warrant.
Ultimately, the case reached the Supreme Court,5 which declared: “[I]t is a violation
of the Fourth Amendment for police to bring members of the media or other third
parties into a home during the execution of a warrant when the presence of the third
parties in the home was not in aid of the execution of the warrant.”6 Id. at 614.

5

In the proceedings below, the Fourth Circuit declined to decide whether officers violated
the Fourth Amendment by permitting media ride-alongs during the execution of a warrant but held
that given the uncertain state of law on the issue, the defendant officers were entitled to qualified
immunity. Wilson v. Layne, 141 F.3d 111 (4th Cir. 1998). Recognizing a circuit split on whether
media ride alongs infringe Fourth Amendment rights, the Supreme Court granted certiorari. Wilson
v. Layne, 526 U.S. 603, 618 (1999) (“Between the time of the events of this case and today’s
decision, a split among the Federal Circuits in fact developed on the question whether media ridealongs that enter homes subject the police to money damages.”).
6

The Wilson Court based its holding on the “overriding respect for the sanctity of the home
embedded in our traditions since the origins of the Republic” and the fact that the presence of
reporters at the home was unrelated to an objective of the authorized intrusion. Wilson v. Layne,

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Pertinent to Mr. Harmon’s ineffective assistance claim, the Wilson Court
noted: “We have no occasion here to decide whether the exclusionary rule would
apply to any evidence discovered or developed by the media representatives.” Id. at
614 n.2. The Court thus left open whether evidence “discovered or developed by
media representatives” could be subject to suppression under the exclusionary rule.
Nothing in the Wilson ruling suggests that media presence alone would warrant the
suppression of evidence seized by law enforcement.
Mr. Harmon does not contend that the HBO film crew present during the
search of his home discovered or developed evidence, and he acknowledges that “the
filmmakers were not acting in aid of the search, but rather were there for commercial
purposes.” Doc. 1 at 21. Instead, he faults his attorney for failing to move for the
suppression of evidence that would have been seized by law enforcement with or
without the film crew present.
The exclusionary rule deters police misconduct by preventing the use of
evidence gained because of such conduct. Hudson v. Michigan, 547 U.S. 586, 592
(2006) (explaining that a condition of applying the exclusionary rule is that a
constitutional violation was a “but-for” cause of obtaining evidence). In this case,

526 U.S. 603, 610-613 (1999). However, because the state of the law was not clearly established
at the time of the search in Wilson, the Supreme Court held that the defendant officers in that case
were entitled to qualified immunity.

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the film crew’s presence may have infringed Mr. Harmon’s Fourth Amendment
rights, but it did not render the evidence seized a product of unlawful police conduct.
Illinois v. Gates, 462 U.S. 213, 223 (1983) (citations omitted) (“The question
whether the exclusionary rule’s remedy is appropriate in a particular context has long
been regarded as an issue separate from the question whether the Fourth Amendment
rights of the party seeking to invoke the rule were violated by police conduct.”).
Especially given the lack of any connection between the discovery and seizure of
inculpatory evidence and the HBO film crew’s presence during the search, the
Arkansas Supreme Court reasonably rejected Mr. Harmon’s ineffective assistance
claim, and the decision is entitled to deference under § 2254(d).
IV.

Conclusion
IT IS THEREFORE RECOMMENDED that:
1.

Petitioner Rodney Dale Harmon’s § 2254 Petition for Writ of Habeas

Corpus (Doc. 1) be DISMISSED with prejudice.
2.

A Certificate of Appealability be DENIED. See 28 U.S.C. § 2253(c)(2);

Rule 11(a), Rules Governing § 2254 Cases in United States District Courts.
Dated 7 January 2025.

____________________________________
UNITED STATES MAGISTRATE JUDGE
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