Anderson v. Hobbs

Filing 31

ORDER denying Plaintiff's embedded requests for Judgment as a matter of law or to stay this case while he exhausts state remedies. The Court will hold an evidentiary hearing on Anderson's allegations of mental illness, brain damage, and chi ldhood trauma. The following scheduled applies: Anderson lists his experts and provides their opinions by 3 April 2015; Hobbs lists his experts and provides their opinions by 22 May 2015; Anderson lists any rebuttal experts and provides their opinions by 19 June 2015; Prehearing disclosures pursuant to Fed. R. Civ. P. 26 by 2 September 2015; and Evidentiary Hearing set for 5 October 2015. Signed by Judge D. P. Marshall Jr. on 10/28/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
PETITIONER

JUSTIN ANDERSON
No. 5:12-cv-279-DPM

v.

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT

ORDER
1. Justin Anderson is under a death sentence for the capital murder of
Clara Creech. He petitions for a writ of habeas corpus, making many
arguments. The Court denies his embedded requests for judgment as a
matter of law or to stay this case while he exhausts state remedies. The Court
agrees with Hobbs on the pleading points and on the lack of available state
remedies. Anderson also requests an evidentiary hearing to show that his
procedural default of claims 2, 3, 6, 7, and 10 can be excused under Trevino v.

Thaler, 133 S. Ct. 1911 (2013) and Martinez v. Ryan, 132 S. Ct. 1309 (2012). NQ
21 at 10. This Court has recently addressed the governing legal standard in
Kemp v. Hobbs, No. 5:03-cv-55 at NQ 107. The Court incorporates and applies
that law to this record.

2. Overwhelming evidence against Anderson exists on the elements of
capital murder, Anderson v. State, 357 Ark. 180,163 S.W.3d 333 (2004), and the
aggravating factors supporting the death sentence, Anderson v. State, 367 Ark.
536,242 S.W.3d 229 (2006). He broke into a home and stole two guns. Four
days later, he came upon a truck driver, Roger Solvey, and shot him several
times. Six days after shooting Solvey, Anderson killed Creech, an eightyseven-year old woman, by shooting her in the back as she was bending down
in her yard. Anderson confessed to killing Creech. He then led investigators
to a gun. After returning to the jail, he confessed to shooting Solvey and
stealing the two guns.
For most of his ineffectiveness claims, Anderson hasn't shown that
"there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." Strickland v.
Washington, 466 U.S. 668, 694 (1984). Moreover, Martinez and Trevino do not

apply to Anderson's claims 6 and 7, which involve allegations of ineffective
assistance of appellate counsel and ineffective assistance of post-conviction
counsel. See, e.g., Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013) (holding
that ineffective assistance of post-conviction counsel does not provide cause

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for excusing procedural default of a claim for ineffective assistance of
appellate counsel, and noting that 28 U.S.C. § 2254(i) bars a claim of
ineffective assistance of post-conviction counsel as a separate ground for
relief); but see Nguyen v. Curry, 736F.3d 1287,1293 (9thCir.2013) (holding that

Martinez allows excuse of procedural default of appellate counsel's ineffective
assistance). Martinez and Trevino do not apply to Anderson's claim 10 of juror
misconduct either because Anderson is alleging "ineffective assistance of
post-conviction counsel as cause to excuse the default of his claim of
ineffective assistance of appellate counsel for failure to raise the juror
misconduct issue on direct appeal." Hodges, 727 F.3d at 531 (emphasis
original). The Court denies Anderson's request for a hearing on these excuses
for his procedural default.
3. Anderson may be able, though, to establish actual prejudice on his
procedurally defaulted ineffectiveness claims arising from his alleged mental
illness and childhood trauma.
posttraumatic

stress

Anderson pleads that he suffers from

disorder,

fetal

alcohol

spectrum

disorder,

neuropsychological deficits, mental retardation, and has brain damage. If
Anderson can prove these allegations, then he may have been prejudiced.

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The Court will therefore hold an evidentiary hearing on Anderson's
allegations of mental illness, brain damage, and childhood trauma. Based on
the evidence received, the Court will decide whether the work of Anderson's
trial or sentencing lawyers' was constitutionally ineffective. That decision
will determine whether Anderson may present claims 2 & 3 on the merits
notwithstanding his failure to develop them in state court.
4. The Court sets the following schedule.
•

Anderson lists his experts and
provides their opinions ................... 3 April2015

•

Hobbs lists his experts and
provides their opinions . . . . . . . . . . . . . . . . . . 22 May 2015

•

Anderson lists any rebuttal experts
and provides their opinions .............. 19 June 2015

•

Prehearing disclosures
pursuant to Fed. R. Civ. P. 26 ......... 2 September 2015

•

*
Evidentiary Hearing . . . . . . . . . . . . . . . . . . 5 October 2015

* If any witness is unavailable for the hearing, his or her testimony should
be videotaped.
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So Ordered.

D.P. Marshall Jr.'
United States District Judge

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