Nalls v. Kelley

Filing 53

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)

Download PDF
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION REGINALD NALLS ADC #106516 PETITIONER No. 5:15-cv-193-DPM v. WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT ORDER 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 -2- 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. So Ordered. /8 11/f.~ J.O 17 * 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). -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?