Abernathy v. Hobbs

Filing 20

ORDER ADOPTING WITH EXCEPTION 16 Report and Recommendations; Abernathy's petition for writ of habeas corpus is denied; a certificate of appealability is granted as to Abernathy's first two grounds for relief; no certificate of appealability will be issued as to his third and fourth grounds for relief. Signed by Judge J. Leon Holmes on 1/29/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ROUTY W. ABERNATHY
ADC #143921
v.

PETITIONER

NO. 5:12CV00277 JLH/BD

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT
ORDER

The Court has reviewed the Recommended Disposition (“Recommendation”) filed by United
States Magistrate Judge Beth Deere, as well as the objections filed by the petitioner, Routy W.
Abernathy. The Court has also made a de novo review of the record. After careful consideration,
the Court adopts the Recommendation as its own, except with respect to the recommendation that
no certificate of appealability issue on Abernathy’s first and second grounds for relief.
Abernathy’s first ground for relief is that his lawyer failed to object to expert testimony by
Cheryl Green, a physician’s assistant, that she believed allegations made by a minor female whose
testimony against Abernathy was admitted under Arkansas Rule of Evidence 404(b). Abernathy’s
second ground for relief is that his lawyer was ineffective for telling the jury during opening statement
that if he believed that the state had failed to prove its case beyond a reasonable doubt, he would not
call Abernathy to testify, which meant that when he did call Abernathy to testify, the jury could
conclude that he believed that the state had met its burden of proof. With respect to these two
grounds for relief, the magistrate judge concluded that the Arkansas Supreme Court had not
unreasonably applied federal law by concluding that Abernathy had failed to show that his defense
counsel’s conduct had prejudiced the defense. The Court agrees with that conclusion but disagrees
with the recommendation that no certificate of appealability should issue.

A certificate of appealability may issue only if the petitioner “has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A substantial showing is a showing
that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the
issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Applying that
standard to this case, the Court believes that a certificate of appealability should issue as to
Abernathy’s first two grounds for relief. Cf. Snowden v. Singletary, 135 F.3d 732, 737-39 (11th Cir.
1996); United States v. Azure, 801 F.2d 336, 341 (8th Cir. 1986).
Routy W. Abernathy’s petition for writ of habeas corpus is denied. A certificate of
appealability is granted as to Abernathy’s first two grounds for relief. No certificate of appealability
will be issued as to Abernathy’s third and fourth grounds for relief.
IT IS SO ORDERED this 29th day of January, 2013.

________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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