Young v. Kelley

Filing 24

ORDER adopting the 11 Recommendations; overruling Mr. Young's objections; granting the 16 motion for copies; and directing the Clerk to transmit copies of the docket filings to Mr. Young at his listed address. The Court will not issue a certificate of appealability. Signed by Judge Kristine G. Baker on 7/18/2017. (mef)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
FREDRICK LEWIS YOUNG, III
ADC # 107979
v.

PLAINTIFF

Case No. 5:15-cv-00118-KGB/JTK

WENDY KELLEY, Director,
Arkansas Department of Correction

DEFENDANT
ORDER

The Court has received Proposed Findings and Recommendations (“Recommendations”)
from Magistrate Judge Jerome T. Kearney (Dkt. No. 11). Plaintiff Fredrick Lewis Young, III,
filed an objection to the Recommendations (Dkt. No. 14). Mr. Young also filed an addendum to
his objections, noting several corrections and additional arguments (Dkt. No. 17). The Court has
reviewed and considered both of these documents, and the Court has reviewed de novo the record
in this case. In addition, the Court has received a motion for copies filed by Mr. Young (Dkt. No.
16). The Court also received a letter from Mr. Young regarding his case (Dkt. No. 18).
The Court turns first to the Recommendations. After reviewing the Recommendations, all
of Mr. Young’s objections, and the record de novo, the Court adopts the Recommendations as its
findings in this case, determines that Mr. Young’s petition for writ of habeas corpus does not
present meritorious ground for relief, and denies with prejudice the petition. Consequently, the
relief Mr. Young requests is denied.
The Court writes separately to address certain of Mr. Young’s objections to the
Recommendations. Mr. Young’s first objection is that his trial counsel was ineffective for failing
to investigate. Mr. Young raised this same issue in his Rule 37 petition. Mr. Young contends in
his objections that it is not merely an allegation he makes that his trial counsel was ineffective but

instead that the ineffectiveness of his trial counsel is an established fact in the record. In support,
Mr. Young has attached copies of the transcript of his trial counsel’s testimony during Mr. Young’s
Rule 37 hearing. In that testimony, Mr. Young’s trial counsel states that he does did not interview
witnesses, that he did drive by the trailer park where the crime occurred but that he did not stop
and look around, and that he did not attempt to determine whether any of the State’s witnesses
would show up or be available for Mr. Young’s potential trial (Dkt. No. 6, Sup. Ct. Rec., at 171,
179–83).
Mr. Young’s trial counsel explained that he does not interview witnesses as a matter of
trial strategy (Id. at 171). He testified that he does not want witnesses to know what they are about
to face when they come into court (Id.). He explained that it “goes for the good for us” if a witness
says something different than what is in a previously given statement (Id.). Mr. Young’s trial
counsel further testified that he investigates those things that are necessary and that it was not
necessary to go out and look at the trailer park when Mr. Young had previously admitted to
shooting a gun there twice (Id. at 180–81). Mr. Young’s trial counsel testified that he did not take
any steps to determine if potential witnesses were still in the Little Rock area or would “show up”
for trial because that is “borderline on attempting to influence a witness,” and reiterated that “it’s
not my strategy to go talk to witnesses” (Id. at 182).
When confronted with Mr. Young’s Rule 37 petition, the Arkansas Supreme Court
affirmed the circuit court’s denial of Mr. Young’s Rule 37 petition. With regard to Mr. Young’s
“failure to investigate” claim, the Arkansas Supreme Court acknowledged that, although counsel
has a duty to conduct a reasonable investigation or to make a reasonable decision that a particular
investigation is unnecessary:
[A] petitioner under Rule 37.1 who alleges ineffective assistance of counsel for
failure to perform adequate investigation must delineate the actual prejudice that
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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 changed the outcome of trial. Watson v. State, 2014 Ark. 203, 444
S.W.3d 835. A petitioner who asserts ineffective assistance for failure to
investigate must show that further investigation would have been fruitful and that
the specific materials identified that counsel could have uncovered would have been
sufficiently significant to raise a reasonable probability of a different outcome at
trial. Id.
Young v. State, 2015 Ark. 65, 6-7.
When evaluating a habeas corpus petition that involves a claim brought to the attention of
the state court and adjudicated on the merits, as this claim was, this Court is limited to determining
whether the state court’s resolution of that claim resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law or resulted in a decision
that was based on an unreasonable application of the facts in the light of the evidence presented in
the state court proceeding.

See 28 U.S.C. § 2254(d).

This Court concludes, as the

Recommendations conclude, that the state court’s resolution of this claim did not result in a
decision contrary to, or involving an unreasonable application of, clearly established federal law
or result in a decision based on an unreasonable application of the facts in the light of the evidence
presented in the state court proceeding.
Pursuant to Strickland v. Washington, counsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular investigations unnecessary. 466 U.S. 668,
691 (1984). “In any ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Id. Further, under federal law, where the alleged error of counsel is a
failure to investigate or discover potentially exculpatory evidence, the determination whether the
error “prejudiced” the defendant by causing him to plead guilty rather than go to trial depends on
the likelihood that discovery of the evidence would have led counsel to change his
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recommendation as to the plea. Hill v. Lockhart, 474 U.S. 52, 59 (1985). The prejudice element
in a habeas analysis is necessary because the failure to investigate—though a constitutional error—
might in certain circumstances be a “harmless” one and hence would not justify habeas corpus
relief. Ford v. Parratt, 673 F.2d 232, 234–35 (8th Cir. 1982) (per curiam) (internal quotation
omitted). Where the defendant enters a guilty plea, the issue of prejudice necessarily centers upon
whether the attorney’s failure to investigate competently any material facts prejudiced the
defendant’s ability to make an intelligent and voluntary plea of guilty. Id.
The Court notes that Mr. Young entered both nolo contendere and guilty pleas before the
circuit court. He entered a negotiated plea of no contest to a charge of aggravated residential
burglary and negotiated pleas of guilty to the offenses of aggravated assault and felon in possession
of a firearm. Young, 2015 Ark. at *1. The State of Arkansas nolle prossed one count each of
aggravated residential burglary and aggravated assault, as well as an allegation of committing a
felony in the presence of a child. Id. The State of Arkansas also agreed to forgo additional
sentencing enhancements. Id.
Here, the parties do not dispute that Mr. Young’s trial counsel obtained the prosecutor’s
file but did not interview witnesses. According to trial counsel, he did not do so because “it goes
to the good for us” if the witness’s statement differs from a previously given statement. It is also
undisputed that Mr. Young’s trial counsel did not have complete transcripts of the witness’s
statements at the time Mr. Young entered his guilty plea. The Court is hard-pressed to ascertain
how trial counsel can effectively rely solely on witness statements when those statements appear
to be incomplete. Moreover, it is hard to reconcile trial counsel’s statement that he “”reviewed the
discovery thoroughly” with his statement that none of the witness statements left anything out
(Dkt. No. 101, Ex. 1, Sup. Ct. Rec., at 174-175).

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However, even if the Court were to assume that trial counsel’s failure to conduct any
investigation or to realize that he was relying on apparently incomplete copies of witness
statements was ineffective, Mr. Young has not met his burden with regard to prejudice and is not
entitled to the relief he seeks. In his objections, Mr. Young does not point to any piece of evidence
or specific facts that his trial counsel would have uncovered had he interviewed witnesses or done
more than drive by the scene. The private investigator who testified regarding trial counsel’s
investigation did not point to any specific facts that were not known to Mr. Young’s trial attorney
at the time of Mr. Young’s plea. The private investigator testified that there appeared to be missing
transcript pages from the witness statements contained in the prosecuting attorney’s file (Dkt. No.
101, Ex. 1, Sup. Ct. Rec., at 101-103, 244-245).
Mr. Young maintains that he cannot show what evidence would have been uncovered when
the transcript pages are missing. He contends that he is “confused to great lengths as to how he
could prove something that is not there to prove it from” (Dkt. No. 14, at 39). Mr. Young, however,
does not indicate that he has ever requested and been denied copies of the complete witness
statements.

While the Court acknowledges Mr. Young’s contention that he cannot prove

something when the witness statements may contain missing pages, he has failed to show that he
could not obtain the missing pages or even present this Court with evidence that the witness
statements were inaccurate due to the seemingly missing pages. Mr. Young’s objections point out
that pages appear to be missing, but he does not tie those missing pages to his decision to plead
guilty or indicate what it is that he thinks could or should have been found.
Mr. Young alleges that his trial attorney failed to investigate, but he has made no showing
of what an investigation would have revealed and how that would have affected his decision to
plead guilty. He contends that he was insistent upon a trial until he determined that his trial counsel

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would not “fight for him.” (Dkt. No. 101, Ex. 1, Sup. Ct. Rec., at 168:23-25).

In his testimony

regarding the guilty plea at the hearing on his Rule 37 petition, Mr. Young contended that his trial
counsel focused on the fact that he faced a potential life sentence and that he felt pressured because
his family was in the room during the discussions (Dkt. No. 101, Ex. 1, Sup. Ct. Rec., at 149-154).
In his testimony, Mr. Young did not refer to the witness statements or their content. He did not
testify that his trial counsel used any of the witness statements to convince him to plead guilty.
See, e.g., Ford, 673 F.2d at 235 (holding that counsel’s failure to investigate or substantiate the
rumored pregnancy of a rape victim and using the rumor as a tool to force the defendant to plead
guilty prejudiced the defendant’s ability to make an intelligent and knowing decision and that the
resulting prejudice was not harmless).
Next, Mr. Young places much emphasis on the fact that the crime scene specialist did not
uncover any bullet cases or observe bullet strikes at the scene. He takes issue with the fact that the
Magistrate Judge characterized the person who reported these findings as a detective, rather than
as a crime scene specialist or investigator. This Court acknowledges that, according to the crime
scene search warrant provided by Mr. Young, Megan McGonegal’s title at the time of the
investigation was crime scene specialist. To the extent that the Recommendations misstate Ms.
McGonegal’s title at the time of the investigation, the Court concludes that such a misstatement
has no impact on this Court’s analysis or the conclusion of the Arkansas Supreme Court. The
Court concurs with the Magistrate Judge that Mr. Young did not prove prejudice in this case.
Further, the Court determines that this conclusion is well-supported by evidence and does not
amount to an unreasonable application of the facts.
Ms. McGonegal stated in her report that she did not recover any bullet casings or observe
any bullet strikes at the crime scene (Dkt. No. 14, at 22). However, the same report states that the

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“residence was extremely filthy and the walls, ceiling and floor were all in extremely poor
condition” (Id.). More importantly, Mr. Young testified at the hearing on his Rule 37 petition that
he read the discovery in his case prior to entering his guilty plea (Dkt. No. 101, Ex. 1, Sup. Ct.
Rec., at 146:17-19). From his testimony, the Court concludes that Mr. Young had access to the
information in Ms. McGonegal’s report prior to entering his guilty plea.
For these reasons, and based on this Court’s de novo review of the record, the Court adopts
the Recommendations and overrules Mr. Young’s objections. The Court will not issue a certificate
of appealability. Rule 11 of the Rules Governing Section 2254 Proceedings provides that “[t]he
district court must issue or deny a certificate of appealability when it enters a final order adverse
to the applicant. Before entering the final order, the court may direct the parties to submit
arguments on whether a certificate should issue.” Rules Governing Section 2254 Proceedings,
Rule 11(a). A court may issue a certificate of appealability only if the petitioner makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Rules
Governing Section 2254 Proceedings, Rule 11(a) (noting that § 2253(c)(2) supplies the controlling
standard). In Miller-El v. Cockrell, 537 U.S. 322 (2003), the Supreme Court held that the
“controlling standard” for a certificate of appealability requires the petitioner to show “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented [are] ‘adequate to deserve
encouragement to proceed further.’” Id. at 336. Mr. Young has failed to meet these standards.
Also before the Court is Mr. Young’s motion for copies (Dkt. No. 16). The Court grants
the motion (Dkt. No. 16). The Court directs the Clerk to transmit copies of the docket filings to
Mr. Young at his listed address.

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It is so ordered this the 18th day of July, 2017.

________________________
Kristine G. Baker
United States District Judge

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