Hall v. Hobbs

Filing 18

ORDER ADOPTING 16 Report and Recommendations in their entirety; therefore, judgment will be entered dismissing this habeas action with prejudice; a certificate of appealability will not be issued. Signed by Judge J. Leon Holmes on 11/1/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
SCOTT HALL, ADC #135137
v.

PETITIONER
No. 5:12CV00345 JLH-JTK

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT

*********************
MICHAEL MYERS, ADC #134974
v.

PETITIONER

No. 5:12CV00346 JLH-JTK

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT
ORDER

The Court has received the Proposed Findings and Recommendations from United States
Magistrate Judge Jerome T. Kearney. After careful review of the findings and recommendations and
the timely objections thereto, as well as a de novo review of the record, the Court concludes that the
findings and recommendations should be, and are hereby, approved and adopted in their entirety as
this Court’s findings in all respects. In their objections to Magistrate Judge Kearney’s proposed
findings and recommendations, the petitioners argue for the first time that the procedural default of
their fifth claim should be excused pursuant to Martinez v. Ryan, where the Supreme Court held:
Where, under state law, claims of ineffective assistance of trial counsel must be raised
in an initial-review collateral proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective assistance at trial if, in the
initial-review collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.
132 S. Ct. 1309, 1320, 182 L. Ed. 2d 272 (2012). The Supreme Court expanded the holding of
Martinez in Trevino v. Thaler, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013). Here, however, the
petitioners were represented by counsel in their Rule 37 proceedings, and they have never alleged that

the lawyer who represented them in those proceedings was ineffective. Even in their objections to
the magistrate’s proposed findings and recommendations, though they raise Martinez, they do not
contend that the lawyer who represented them in their Rule 37 proceedings was ineffective. The
petitioners have not even alleged that the lawyer who represented them in their Rule 37 proceedings
was ineffective, much less made a prima facie showing that would entitle them to an evidentiary
hearing on that issue. Accordingly, their argument that the procedural default of their fifth claim
should be excused pursuant to Martinez is without merit.
Accordingly, judgment shall be entered dismissing this complaint with prejudice.
The Court will not issue a certificate of appealability because the petitioners have not made
a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(1)-(2).
IT IS SO ORDERED this 1st day of November, 2013.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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