Nalls v. Kelley
ORDER adopting 50 Recommendation as supplemented and overruling 51 Nalls's objections. His petition will be dismissed with prejudice. No certificate of appealability will issue. Erin Cassinelli is relieved as counsel with the Court's thanks. Signed by Judge D. P. Marshall Jr. on 5/18/2017. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
WENDY KELLEY, Director,
Arkansas Department of Correction
1. On de nova review, the Court adopts Magistrate Judge Kearney's
recommendation, Ng 50, as supplemented and overrules Nalls's objections,
Ng 51. Nalls doesn't take issue with the conclusion on Claims 3 and 4. Ng 50
at 8-10. But he attacks from every angle the recommendation on his
remaining claims. Ng 51 at 2-10. Nonetheless, on the merits, all of Nalls' s
remaining claims fail. McKinnon v. Lockhart, 921 F.2d 830, 833 n.7 (8th Cir.
1990) (per curiam).
2. First, the prosecutor's comments. Ng 51at3-7. The statements Nalls
complains about-during voir dire, trial, and closing argument-didn't
deprive Nalls of a fair trial. In light of the entire trial record, though strained,
the prosecutor's talk about aliens, possibilities, and reasonable doubts was not
so egregious that it infected Nalls' s trial and made it fundamentally unfair.
Darden v. Wainwright, 477 U.S. 168, 181 (1986). The jury also heard proper
statements from the lawyers about reasonable doubt and the burden of proof.
E.g., NQ 15-16 at 54-55 & 68-69. The trial court gave appropriate instructions
on both points, as well as the presumption of innocence. NQ 15-18 at 39-40.
Further, the jury's inability to reach a verdict on Counts 1, 2, and 3 supports
the usual presumption-that the jury followed the court' s instructions. E.g.,
Weeks v. Angelone, 528 U.S. 225, 234 (2000). Nalls simply can't show a
reasonable pro ba bili ty that, but for the prosecutor's challenged comments, the
outcome on Count 4 would have been any different. Newlon v. Armantrout,
885 F.2d 1328, 1336-37 (8th Cir. 1989).
3. Next, the severance-ineffectiveness claim. NQ 51at8-10. This claim
is a procedural tangle. E.g., NQ 49 at 3-7; NQ 50 at 14-18; NQ 51at8-10. But
even if there's a Martinez/Trevino-excused default, the claim fails on the
merits. Nalls makes a hard run at trial counsel's reasons for not seeking a
severance, NQ 49 at 8-18, but Strickland v. Washington, 466 U.S. 668, 687 (1984)
requires much deference to counsel's choice.
Avoiding the greater
uncertainty, especially in the potential total sentence, that would have come
with two juries instead of one was a reasonable strategic decision in the
circumstances. NQ 45 at 12-13 & 57-58. And though hindsight shows this
didn't result in total victory, the Court can't consider that circumstance
against Nalls's lawyer. Strickland, 466 U.S. at 689.
Recommendation, NQ 50, adopted as supplemented. Objections, NQ51,
overruled. Nalls's petition will be dismissed with prejudice. No certificate
of appealability will issue. 28 U.S.C. § 2253(c)(l)-(2). Erin Cassinelli* is
relieved as counsel with the Court's thanks.
Though not appointed to help by the Magistrate Judge, Jamie Ford
is on the briefs for Nall with Cassinelli. Ford is the daughter of Christa
Jacimore, the court reporter who spends much of her time covering
hearings before me. I've considered recusal, but concluded it is not
warranted in these circumstances. 28 U.S.C. § 455(a).
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