Pigg v. Kelley

Filing 20

RECOMMENDED DISPOSITION recommending that 2 the Petition for a Writ of Habeas Corpus be denied and this habeas case be dismissed, with prejudice; and further recommending that a Certificate of Appealability be denied. Objections due within 14 days of the entry of this Recommendation. Signed by Magistrate Judge J. Thomas Ray on 5/30/2018. (kdr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

EARL DELMAR PIGG
ADC #155511
VS.

PETITIONER

5:16-CV-000212-JLH/JTR

WENDY KELLEY, Director,
Arkansas Department of Corrections

RESPONDENT

RECOMMENDED DISPOSITION
The following Recommended Disposition (“Recommendation”) has been sent
to United States District Judge J. Leon Holmes. You may file written objections to
all or part of this Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days of the entry of this
Recommendation. The failure to timely file objections may result in waiver of the
right to appeal questions of fact.
I. Background
Pending before the Court is a § 2254 Petition for a Writ of Habeas Corpus
filed by Petitioner, Earl Delmar Pigg (“Pigg”). Doc. 2. Before addressing Pigg’s
habeas claims, the Court will review the procedural history of the case in state court.
On August 8, 2012, a jury convicted Pigg of eleven counts of rape and one

count of interference with custody. The trial court imposed the jury recommended
sentence of life on each count of rape and ten years on the interference conviction,
with all sentences to run consecutively.
In Pigg’s direct appeal, he contended that the trial court erred in: (1) denying
his motion to admit evidence that A.S.,1 Pigg’s primary victim, had a sexual
relationship with her former youth minister, Dalton Smith (“Smith”), which created
an alleged motive to falsely accuse Pigg; 2 and (2) sustaining the State’s objection
to Pigg offering hearsay testimony that he overheard one of the victims coaching a
five year old to make false allegations against Pigg’s daughter.
On October 23, 2014, the Arkansas Supreme Court rejected both of Pigg’s
arguments and affirmed his convictions. Pigg v. State, 2014 Ark. 433 (“Pigg I”). In
doing so, the Court held that: (1) any error in excluding the testimony Pigg argued
would have revealed A.S.’s alleged motivation to “falsely” accuse him was harmless
because the evidence of his guilt was “so overwhelming;” and (2) Pigg’s hearsay
argument was not preserved for appellate review. Id. at *5.

1

Throughout this Recommendation, the Court will refer to Pigg’s two rape victims by their
initials, A.S. and W.S. A.S. and W.S. are sisters who were friends of Pigg’s daughter, Haley, and
they were frequent visitors to Pigg’s residence.
2

Smith was convicted and sentenced to a six-year term of imprisonment for sexually
abusing A.S. Pigg theorized that A.S. accused him of rape because she believed he reported
Smith’s conduct to the police. 2014 Ark. at *2.

2

Proceeding pro se, Pigg sought postconviction relief in the state circuit court
under Rule 37 of the Arkansas Rules of Civil Procedure. In his Rule 37 Petition and
supplemented Petition, Pigg alleged four categories of error.
First, he contended that his trial counsel was constitutionally ineffective for:
(1) failing to file the proper motions, including relief under
Arkansas’s rape shield statute, to permit adequate cross-examination of
the victims and witnesses to expose their motive in “falsely” accusing
him of criminal misconduct;3
(2) failing to investigate and subpoena potential witnesses,4 who
would have testified to his character and corroborated his theory that
the victims and their families conspired to make false charges against
him;5
(3) failing to conduct an adequate or thorough investigation of
the relevant facts, filing inadequate pretrial motions, and failing to
properly conduct the guilt and penalty phases of the trial;6
(4) conspiring with detectives and the prosecution to convict him
by various means, including tampering with and destroying evidence;7
(5) failing to present medical records of his erectile dysfunction
and character evidence of his good employment habits during the
penalty phase of his trial;
3

Doc. 10-10, Tr. at 55; 80.

4

Pigg’s Rule 37 Petition identified as potential “defense character witnesses”: Sammy
Ferris, Kenneth Crowley, Michael Hopewell, Sklyer Sparks, and Sparks’ father.” Doc. 10-10,
Exh. D, Tr. at 56.
5

Doc. 10-10, Tr. at 56.

6

Doc. 10-10, Tr. at 57, 79-84.

7

Doc. 10-10, Tr. at 57-58.

3

(6) failing to request lesser-included jury instructions and failing
to preserve for appellate review issues of sufficiency of the evidence to
support those instructions;
(7) failing to file the proper motions or make the proper
objections to exclude the 404(b) testimony of Pigg’s niece, Meghan
Lynn Pigg;
(8) failing to move for a mistrial on Pigg’s allegation that
Detective Johnathan Wear spoke to jurors during the trial;
(9) failing to move for a change of venue;
(10) failing to request an evidentiary hearing and attending
hearings without Pigg being present;
(11) failing to challenge the evidence, including inconsistencies
in victim and witness testimony and the lack of any physical evidence;
(12) failing to file and argue a motion to present testimony that
one of the victims tried to coach a five-year old to make false statements
against Pigg’s daughter in 2010;
(13) failing to seek a change of venue and to file a motion for
mistrial based on alleged statements made by witnesses and victims in
the presence of five jury members; and
(14) failing to discover evidence of other medical causes of one
victim’s injuries or to object to testimony “bolstering” the victim’s
credibility.
Second, Pigg alleged that authorities failed to “disclose numerous police
reports” involving complaints Piggs had previously made against the victims and
their families, in violation of Brady v. Maryland, 373 U.S. 83 (1963).

4

Third, Pigg asserted a “cumulative error” claim and also argued that that the
prosecution failed to disclose that State’s witnesses “told numerous lies” during the
investigation “under relentless coercion [from the prosecution] . . . .” Doc. 10-10,
Tr. at 60, 83-84.
Finally, Pigg asserted a “newly discovered” evidence claim, supported by
affidavits from three witnesses suggesting that youth minister Dalton Smith
conspired with the victims to have Pigg falsely charged and convicted in retaliation
for Pigg reporting Smith’s sexual relationship with A.S. Id., Tr. at 84-85.8
On March 18, 2015, the trial court held a hearing on Pigg’s Rule 37 Petition.
Doc. 10-12 at 2-137. Three witnesses testified: (1) Pigg; (2) Pigg’s trial counsel,
William L. Griggs, IV (“Attorney Griggs”); 9 and (3) Detective Johnathan Wear.
On March 19, 2015, the trial court entered an Order denying all of the claims asserted
by Pigg in his Rule 37 Petition. Doc. 10-10, pp. 111-115.
In his pro se appeal to the Arkansas Supreme Court, Pigg pursued only three
of the many Rule 37 claims he made before the trial court: (1) his attorney was
ineffective in investigating the facts of the case and developing potential defense

8

Pigg also tendered affidavits from himself, Rex Ritchie, Michael Hopewell, and William
Woods. Doc. 10-13, Tr. at 370-376.
9

Attorney Griggs was Pigg’s third trial counsel. Initially, Pigg retained counsel, but he
withdrew. Pigg’s first appointed counsel also withdrew, citing a conflict.
On direct appeal, a different attorney was appointed to represent Pigg.

5

witness testimony from Sammy Ferris, Kenneth Crowley, Michael Hopewill and
Skylar Sparks;10 (2) his attorney was ineffective in failing to exclude evidence based
on Ark. R. Evid. 404(b); and (3) his attorney was ineffective in failing to present
available erectile dysfunction evidence during the penalty phase of the trial. In his
appeal brief, Pigg acknowledged that he was abandoning his ineffective assistance
of counsel claims based on his attorney allegedly failing to request a hearing under
the rape shield statute11 and allegedly conspiring with the prosecution and
detectives.12 Doc. 10-14, at p. 8, 31-36, 103.
On March 10, 2016, the Arkansas Supreme Court affirmed the denial of Rule
37 relief. Pigg v. State, 2016 Ark. 108 (“Pigg II”); see also Doc. 10-15.
On July 11, 2016, Pigg initiated this § 2254 action. Doc. 2. On September
30, 2016, the Respondent filed her Response. Doc. 10. On January 3, 2017, Pigg
filed a 103 page Reply Brief and 700 pages of supporting exhibits that significantly

10

Those were the only prospective witnesses Pigg identified by name in his postconviction
appeal. Doc. 10-14 at 104.
11

The Court has liberally construed Pigg’s federal habeas Petition as asserting the claim
that his trial counsel made “constitutionally inadequate arguments” during the rape shield hearing.
This construction is consistent with Pigg’s concession on appeal that he was only abandoning his
claim that his trial counsel was ineffective for failing to request a hearing under the rape shield
statute.
12

Pigg admitted in his appeal brief that no evidence in the record supported his claim that
his trial attorney had conspired with the prosecutor and detectives. Doc. 10-14 at p. 31, 34.

6

enlarged the claims he asserted in his initial habeas Petition.13 Docs. 16 & 17.
Importantly, in his Reply Brief, Pigg states that “all” of his asserted grounds for
habeas relief are now based on “ineffectiveness of trial counsel.” Doc. 16 at 5.
Accordingly, the Court has construed Pigg’s habeas Petition and Reply Brief as
asserting only various species of ineffective assistance claims against his trial
counsel, Attorney Griggs.
While the Court is required to construe Pigg’s habeas Petition liberally, this
does not relieve Pigg of the burden of “stat[ing] the facts supporting each ground”
for habeas relief. See Rule 2(c)(2) of the Rules Governing Section 2254 Cases in the
United States District Courts; Jones v. Jerrison, 20 F.3d 848, 853 (8th Cir. 1994).
Thus, as a matter of law, the Court is not required to consider any of Pigg’s entirely
conclusory habeas claims, which are not supported by any facts or law.14 Miller v.

13

Arguably, a Reply “is not the proper pleading in which to raise additional grounds for
habeas relief.” Parker v. Smith, 858 F.Supp.2d 229, 233 (N.D. NY 2012); Gonzales v. Mize, 565
F.3d 373, 382 (7th Cir. 2009) (argument raised for the first time in habeas petitioner’s reply brief
was waived); see also Mayle v. Felix, 545 U.S. 644, 655-56 (2005) (explaining that pleading
requirements of Habeas Corpus Rule 2(c) are more demanding than notice pleading under Fed. R.
Civ. P. 8(a)). Nevertheless, to the extent they state cognizable claims for habeas relief, the Court
will consider the claims Pigg has asserted in his Reply.
14

Many of these conclusory claims and allegations are nothing more than an attempt to
relitigate his state trial, which is explicitly prohibited under § 2254: “Federal courts are not forums
in which to relitigate state trials.” Barefoot v. Estelle, 463 U.S. 880, 887 (1983). The fact that the
Court has not discussed a particular allegation does not mean that it was overlooked. Whether
specifically mentioned in this Recommended Disposition or not, the Court has carefully considered
all of Pigg’s allegations for habeas relief and rejected, without discussion, those claims and
allegations that are factually and legally unsupported or mere attempts to relitigate his state court
convictions.

7

Kemna, 207 F.3d 1096, 1097 (8th Cir. 2000) (pro se petition was not construed to
recognize an unarticulated argument); Small v. Endicott, 998 F.2d 411, 417–18 (7th
Cir. 1993) (pro se petition consisting of highlighted passages or scribbled notes in
margins of judicial opinions not construed as substitute for petition actually alleging
legal arguments).
To facilitate its discussion of Pigg’s cognizable ineffective assistance of
counsel claims, the Court has grouped those claims as follows:
Claim 1 -

Trial counsel was ineffective for failing to investigate and
present evidence to support Pigg’s theory that the victims
and their families framed Pigg in retaliation for his role in
reporting Dalton Smith’s sexual assault of A.S.;

Claim 2 -

Trial counsel was ineffective for failing to
investigate, discover witnesses, and present evidence to
support Pigg’s claim that the States’ witnesses had other
motivations to testify against him (other than the Dalton
Smith retaliation theory);

Claim 3 -

Trial counsel was ineffective for failing to admit
medical evidence and testimony regarding Pigg’s erectile
dysfunction;

Claim 4 -

Trial counsel was ineffective for failing to exclude the
testimony of Meghan and Loral Pigg under Rule 404(b) of
the Arkansas Rules of Evidence and to move for a mistrial;

Claim 5-

Trial counsel was ineffective for failing to conduct a
constitutionally inadequate cross-examination of the
State’s witnesses;15

15

In rejecting this claim in Pigg’s Rule 37 proceeding, the trial court ruled: “Trial counsel
testified, and the transcript indicated that Trial Counsel did cross-examine state’s witnesses and
was able to point out inconsistencies in prior testimony. Doc. 10-10 at 113.

8

Claim 6-

Trial counsel was ineffective for failing to object to
the State’s witnesses on direct examination and the State’s
closing argument;

Claim 7-

Trial counsel was ineffective for failing to file a
motion to suppress evidence from a search of Pigg’s
cell phone;

Claim 8 -

Trial counsel was ineffective for failing to move to
suppress the statements Pigg made to Detective Wear;

Claim 9 -

Trial counsel was ineffective for failing to request jury
instructions on lesser included offenses and to preserve
that issue.16

Claim 10 - Trial counsel was ineffective for allowing the rape
charges and the interference with custody charges to be
consolidated and resolved in one trial.17
Docs. 2, 17.

Pigg did not appeal this ruling to the Arkansas Supreme Court. Thus, this claim is now
procedurally defaulted. As discussed later, the Martinez exception does not apply and it cannot be
used to save this claim from default. See discussion, infra at 15.
16

Pigg pursued this claim in his Rule 37 proceeding. Doc. 10-10, Tr. at 59. The state trial
court denied the claim, pointing out that Pigg’s trial counsel requested a lesser-included jury
instruction, but the request was denied. Doc. 10-10, Tr. at 107. Pigg did not appeal this ruling.
Thus, this claim is procedurally defaulted and not subject to the Martinez exception.
17

Pigg raised this claim in his Rule 37 proceeding. In denying the claim, the trial court

ruled:
Trial counsel testified he did discuss with Petitioner joining the criminal cases and
that in Trial Counsel’s judgment, the cases should be joined so the State would not
have two opportunities to prosecute” Pigg and, in the event of a guilty verdict in
the first trial, to use that prior conviction against Pigg in the second trial.
Doc. 10-10 at 113. Because Pigg failed to appeal this ruling, he may not rely on Martinez to save
this claim from procedural default.

9

Respondent argues that all of Pigg’s habeas claims should be dismissed, with
prejudice, because they are either procedurally defaulted, or without merit. Doc.
10. For the reasons discussed below, the Court agrees and recommends that all of
Pigg’s claims be denied and the case dismissed, with prejudice.
II. Discussion
A.

The Trial Court Record Contained “Overwhelming”
Evidence of Pigg’s Guilt

On direct appeal, the Arkansas Supreme Court reviewed the trial record and
concluded that it contained “overwhelming” evidence of Pigg’s guilt:
According to the evidence presented at trial, A.S., a female minor, was
the victim of ten counts of rape, while W.S., her younger sister, was the
victim of a single count of rape. Both girls were friends of Pigg's
daughter. At trial, the testimony revealed that Pigg engaged in a fiveor six-year sexual relationship with A.S. and that he digitally penetrated
W.S. on several occasions.
...
. . . We need not decide whether the circuit court erred because any
error in the exclusion of the testimony was harmless, given the
overwhelming evidence of guilt. A.S.'s testimony, in detail, revealed
that Pigg had sexual relations with her for five to six years beginning
when she was eleven years old. Pigg’s daughter and W.S. witnessed
some of the sexual activity, which they described in their testimony. In
addition, expert testimony disclosed that A.S. had a deep notch in her
hymen, which was suggestive of sexual abuse or penetrating trauma.
Moreover, the jury heard the testimony of Pigg’s niece who said that
Pigg had molested her when she was eight years old. Even when a
circuit court errs in making an evidentiary decision, we may declare the
error harmless and affirm if the evidence of guilt is overwhelming and
the error is slight. [citation omitted] We conclude that the evidence of
guilt in this case is so overwhelming that any error in the exclusion of
the proposed testimony is harmless.
10

Pigg I, 2015 Ark. App. 572, *2-*5.
A year later, in affirming the trial court’s denial of Rule 37 relief, the Arkansas
Supreme Court provided an even more detailed discussion of the “overwhelming”
evidence that supported Pigg’s guilt:
The evidence at Pigg’s trial included testimony from A.S. and her
younger sister, W.S., who were friends with Pigg’s daughter. A.S.
testified that she had an ongoing sexual relationship with Pigg that
began when she was eleven or twelve. A.S. testified that Pigg proposed
marriage and gave her a ring on a trip to Fayetteville that she took with
Pigg, Pigg’s daughter, and W.S. W.S. and Pigg’s daughter both testified
to having witnessed the marriage proposal and to having previously
witnessed oral sex between Pigg and A.S. W.S. testified that she had
been digitally penetrated by Pigg. Pigg’s daughter’s mother also
described the relationship between Pigg and A.S., and, consistently
with the girls’ testimony, she stated that she had noticed inappropriate
behavior between the two that was indicative of a sexual relationship.
She testified that Pigg had demanded that she begin sleeping in a guest
room so that A.S. could sleep with Pigg.
An investigating detective, Jonathan Wear, testified that A.S. was
wearing a ring that she said Pigg had given her, and the ring was
introduced into evidence. Wear also testified that Pigg had fled on his
motorcycle when Wear and another officer tried to arrest him, that Pigg
crashed the motorcycle, and that a phone was confiscated at the crash
scene. The phone had numerous pictures of A.S., texts with A.S., and a
video of A.S. dancing that were all introduced into evidence.
One of the girls’ friends testified that she had accompanied Pigg and
A.S. on a trip to Branson, Missouri, where she observed A.S. holding
hands with Pigg and A.S. dancing in the video. The friend testified that
they had told A.S.’s grandmother, who was A.S.’s guardian, that they
were going to visit an aunt of the friend because A.S. was not supposed
to be with Pigg. They had taken a picture with a stranger to aid in this
deception. Her description of the trip was consistent with the other
witnesses’ testimony.
11

In addition, there was expert testimony that A.S. had physical signs
suggesting sexual abuse, and testimony from Pigg's niece that Pigg had
molested her when she was eight years old.
Pigg II, 2016 Ark. 108, *5-6.
In order to prevail on his ineffective assistance of counsel claims, Pigg must
establish that, but for his attorney’s error, there is a reasonable probability that the
result of the criminal proceeding would have been different.

Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984). Because the prosecution presented
overwhelming evidence of Pigg’s guilt, this creates a serious threshold problem for
Pigg in trying to maintain the viability of his ineffective assistance of counsel claims.
B.

Legal Standards Applicable to Pigg’s Habeas Claims
1.

Deferential Standard of Review Governing Pigg’s
Claims That Were Fully Adjudicated on the Merits in
State Court

A doubly deferential standard of review, imposed by 28 U.S.C. § 2254(d),18

18

Where a state court has previously adjudicated a claim on the merits, a federal habeas
court may grant habeas relief in only three limited situations: (1) the decision was “contrary to ...
clearly established Federal law, as determined by the Supreme Court of the United States,” 28
U.S.C. § 2254(d)(1); (2) the decision “involved an unreasonable application” of clearly established
federal law, id.; or (3) the decision “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding,” id. § 2254(d)(2).
For purposes of § 2254(d)(1), “an unreasonable application of federal law is different from
an incorrect application of federal law.” Harrington, 562 U.S. at 101. “Surmounting Strickland’s
high bar [for evaluating ineffective-assistance claims] is never an easy task,” and “[e]stablishing
that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more
difficult.” Id. at 105 (citations omitted). The standards created by Strickland and § 2254(d) “are
both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id.

12

controls this Court’s merits review of habeas claims that were fully adjudicated by
the state courts of Arkansas.19 Claim 1, Claim 2 (in part), Claim 3 (in part), and
Claim 4 were fully adjudicated on the merits in Arkansas state court.
In ruling on those claims, the Arkansas Supreme Court correctly identified the
controlling legal standard in Strickland v. Washington, 466 U.S. 668, 687 (1984) and
properly applied it to deny Pigg post-conviction relief. Pigg v. State, 2016 Ark. 108,
*3. For Pigg now to obtain habeas relief on those claims, he must demonstrate that
the Arkansas Supreme Court’s application of the Strickland standard was
“unreasonable,@ i.e., its decision was Aso lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility of
fair-minded disagreement.” Harrington v. Richter, 562 U.S. 86, 101-03 (2011).
Meeting this high bar is a daunting task and requires a habeas petitioner to
show that: (1) counsel’s representation fell below an objective standard of
reasonableness; and (2) but for counsel’s error, there is a reasonable probability that
the result of the criminal proceeding would have been different. Strickland, 466 U.S.
at 687-88, 694. The law is clear that the defendant “bears the burden to meet

19

A state court adjudicates a claim “on the merits,” triggering deferential review, when it
decides a habeas petitioner’s right to relief on the basis of the substance of the federal claim
advanced, rather than on a procedural or other rule precluding state court merits review.
Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011) (when a state court decision is ambiguous,
and so it is “a close question” on whether the state court denied a petitioner’s claim on procedural
grounds or on the merits, a federal court must presume that the state court adjudicated the claim
on the merits).

13

[Strickland’s] two standards.” Weaver v. Massachusetts, 137 S. Ct. 1899, 1910
(2017).20
In Section C (pages 17 through 34), Claims 1 through 4 are analyzed and the
Court explains why Pigg has not overcome the highly deferential standard of review
governing those habeas claims.
2.

Standard of Review Governing Pigg’s Procedurally
Defaulted Claims

All of Pigg’s other substantive claims are procedurally defaulted because they
either were not adjudicated at all or were only partially adjudicated in state court.
Before seeking federal habeas review, § 2254(b)(1)(A) requires a state prisoner to
first “exhaus[t] the remedies available in the courts of the State,” thereby affording
the state courts “the first opportunity to address and correct alleged violations of
[the] prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991).
When a petitioner fails to fully exhaust his claims in state court and the time for
doing so has expired, his claims are procedurally defaulted. Id. at 731-32.
Under Arkansas law, ineffective assistance of counsel claims generally must
be raised in a Rule 37 petition and may not be considered on direct appeal. Ratchford

20

See Burt v. Titlow, 134 S. Ct. 10, 17 (2013) (under Strickland, counsel is “strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment,” with the burden to show otherwise “rest[ing] squarely on
the defendant”); Wong v. Belmontes, 558 U.S. 15, 27 (2009) (“Strickland places the burden on the
defendant, not the State, to show a ‘reasonable probability’ that the result would have been
different.”).

14

v. State, 357 Ark. 27, 31 (2004) (“It is well settled that this court will not consider
ineffective assistance as a point on direct appeal unless that issue has been
considered by the trial court.”). Thus, to exhaust his Rule 37 ineffective assistance
of counsel claims, Pigg was required to raise those claims with the trial court and
then appeal the denial of relief to the Arkansas Supreme Court. Armstrong v. Iowa,
418 F.3d 924, 925-26 (8th Cir. 2005).
When a procedural default occurs, federal habeas review of the claim is barred
unless the prisoner can demonstrate “cause” for the default and “actual prejudice”
as a result of the alleged violation of federal law, or demonstrate that failure to
consider his claim will result in a fundamental miscarriage of justice. Coleman, 501
U.S. at 750.
Pigg makes only one argument to excuse his procedural default: his lack of
an attorney, at the initial step of his Rule 37 post-conviction review, should be
deemed to be “cause” to excuse his procedural default of those ineffective assistance
of counsel claims. In support of this argument, Pigg relies on Martinez v. Ryan, 566
U.S. 1 (2012) and Trevino v. Thaler, 133 S.Ct. 1911 (2013). Doc. 16 at 3-8.
However, as explained below, Martinez either does not apply or, if it does, Pigg
cannot meet the essential elements required to excuse his default of those claims.
(a)

Pigg’s Procedurally Defaulted Claims That Are
Outside The Scope of Martinez

Martinez and its progeny apply only to claims that were defaulted in the initial
15

post-conviction proceeding. In Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir.
2012), the Court explicitly held that Martinez is not applicable to excuse default of
ineffective assistance claims that were litigated in an initial review post conviction
proceeding, but not preserved in the post-conviction appeal. See Martinez, 566 U.S.
at 16 (holding does not extend to defaults occurring in other kinds of proceedings,
“including appeals from initial-review collateral proceedings”).
In Pigg’s initial Rule 37 proceeding, the trial court ruled against Pigg on
Claims 5, 9, and 10. Pigg’s Rule 37 appeal to the Arkansas Supreme Court did not
raise or address the trial court’s rejection of Claims 5, 9, and 10. Accordingly,
Martinez does not apply to those three claims, which are now procedurally defaulted
and cannot be saved. Accordingly, those claims require no further discussion, and
the Court recommends that they be dismissed, with prejudice.
(b)

Pigg’s Defaulted Claims That Qualify For Analayis
Under Martinez

Pigg procedurally defaulted Claims 6, 7, and 8 by not raising them in his initial
pro se Rule 37 proceeding. Thus, if Pigg can satisfy the Martinez test, those claims
may be saved from procedural default. To meet his burden under Martinez, Pigg
must establish that each of his “underlying ineffective-assistance-of-trial-counsel
claim[s] is a substantial one.” Martinez, 566 U.S. at 14; Dansby v. Hobbs, 766 F.3d
809, 834 (8th Cir. 2014) (quoting Trevino v. Thaler, 133 S.Ct. 1911, 1918 (2013);
see also Sasser v. Hobbs, 735 F.3d 833, 853 (8th Cir. 2013) (applying Martinez and
16

Trevino to Arkansas proceedings). For an ineffective assistance of counsel claim to
be “substantial,” the habeas petitioner must demonstrate that his claim: (1) has
“some merit”; and (2) is supported by at least some facts. Martinez, 566 U.S. at 1416. If a habeas petitioner is unable to satisfy either part of this “substantiality test,”
his ineffective assistance of counsel claim is procedurally defaulted and cannot be
properly considered in a § 2254 habeas action. Id. Thus, in order for Pigg to save
Claims 6, 7, and 8 from procedural default under Martinez, he must make a
“substantial” showing under both the performance and prejudice prongs of
Strickland.
In Section D (pages 34 through 41), Claims 6, 7, and 8 are analyzed and the
Court explains why Pigg has not satisfied the “substantiality test” required to save
those ineffective assistance of counsel claims from procedural default.
C.

Analysis of Pigg’s Ineffective Assistance of Counsel Claims
That Were Fully Adjudicated In State Court
1.

Claim 1 - Trial Counsel Failed to Adequately
Investigate and Present Testimony That Dalton Smith
Had Pigg Falsely Charged With Raping A.S.

Pigg argues that his trial counsel failed to develop and present testimony to
support the defense that Dalton Smith convinced the victims and their families to
“concoct the accusations” against Pigg “in retaliation” for him reporting Dalton

17

Smith’s consensual sexual relationship with A.S.21
Pigg’s trial counsel attempted to present evidence to support portions of this
defense at trial,22 but the trial court excluded the evidence under Arkansas’s rapeshield statute.23 Before trial, Piggs’ attorney filed a motion requesting the court’s
permission to introduce evidence “of other occurrences of sexual conduct between
an alleged victim” and “two other persons.”24 Doc. 10-3, Tr. 244-45. During the
hearing on that motion, Pigg’s counsel argued he should be allowed to crossexamine A.S. on whether she believed that Pigg and his ex-girlfriend, Krystal
Buckalew (“Buckalew”), provided the information in the police reports that led to

21

Doc. 2 at 5.

22

The Court construes Pigg’s claim broadly to include both the theory that his trial counsel
should have made additional arguments to try to get this evidence before the jury and that the
arguments he made were the wrong arguments.
23

Arkansas’s rape-shield statute required Pigg’s trial counsel to get the trial court’s
permission before asking A.S. about: (1) her prior sexual relationship with Smith; (2) the fact
that Smith had been convicted of sexually assaulting her; (3) whether she believed Pigg had
reported Smith’s sexual contact with her to the police; or (4) any matter that would have revealed
her past sexual conduct with another person in an effort to impeach her. See Ark. Code Ann. § 1642-101 (prohibiting, inter alia, evidence of a victim’s prior sexual conduct with any person “to
attack the credibility of the victim, to prove any defense, or for any other purpose,” but establishing
a procedure for defendants to establish the relevancy of such evidence in an in camera hearing);
see also Turner v. State, 355 Ark. 541, 545-546 (2004) (affirming trial court ruling to exclude
proposed evidence that the victim gave inconsistent statements to the police regarding her sexual
activity before being raped by defendant and agreeing that the probative value of the evidence did
not outweigh “the obvious or inflammatory effect of the evidence, which would have been to cast
the young girl in a bad light.”).
24

One of those persons was Smith; the second person was Krystal Buckalew (“Buckalew”),
Pigg’s girlfriend. Buckalaw testified against Pigg at trial.

18

Smith’s arrest, conviction and prison term. Id. at 371.
The trial judge denied the motion to the extent it sought to allow Pigg’s
attorney to question A.S. about her sexual relationship with Smith, in violation of
the rape-shield statute.25 Doc. 10-3, Exh. A, Tr. 372. However, the trial court
permitted Pigg’s trial counsel to ask Buckalew whether she had been accused of
sexually abusing A.S. Doc. 10-3, Tr. 369. At trial, A.S. recanted her earlier
allegations against Buckalew, explaining that she made them out of anger at
Buckalew for reporting Pigg to the police. Doc. 10-6, Tr. 885.
In his initial Rule 37 proceeding, Pigg submitted affidavits from Rex Lee
Ritchie, Michael Hopewell, and William Woods, who claimed that Smith, while
incarcerated, confessed to them that he conspired with Pigg’s accusers to have Pigg
arrested and charged with rape.26 Pigg also offered his own self-serving affidavit,
full of inadmissible hearsay, repeating what Smith allegedly told Pigg about his
“conspiracy” with the victims.27 Relying on those affidavits, Pigg made the vague
argument that his attorney filed “the wrong motion,” without ever identifying “the

25

Pigg appealed this evidentiary ruling. It was upheld on direct appeal. Pigg I, 2014 Ark.
433 at 3-5. The Arkansas Supreme Court ruled that it “need not decide whether the circuit court
erred because any error in the exclusion of the testimony was harmless, given the overwhelming
evidence of guilt.” Id. at *4.
26

Doc. 10-13, Exh. D, Tr. 370-373.

27

Id., Tr. 374-376.

19

correct motion” that should have been filed.28
In rejecting these arguments for Rule 37 relief, the trial court ruled that: (1)
any evidence regarding the victim’s “prior sexual conduct with ‘other males’” was
inadmissible during the rape-shield hearing; (2) Pigg provided his counsel with the
names of defense witnesses after the trial had started; and (3) the proposed defense
witness testimony, as contained in the proffered affidavits, was inadmissible
hearsay.29
In affirming the trial court’s denial of Rule 37 relief on those grounds, the
Arkansas Supreme Court cited Pigg’s failure to prove Strickland prejudice. Pigg II,
2016 Ark. 108.

Finding that A.S.’s testimony was abundantly supported by

“independent evidence,” the Court held that “the evidence [against Pigg] . . . was so
overwhelming that no prejudice would have resulted from the failure to present
evidence of A.S.’s motivation to lie or from a failure to use the theory of defense
that Pigg contends would have been successful.” Id. at *6 (emphasis added).
In his § 2254 habeas papers, Pigg does not argue that the Arkansas Supreme
Court unreasonably applied Strickland. Instead, he contends that he now has “new
evidence” to support his contention that the rape charges against him were “trumped
up.” Doc. 17 at 27.

28
29

Doc. 10-12, Tr. 180.
Doc. 10-10, Tr. 105-106.

20

What Pigg offers is not “new evidence,” but rather affidavits from new
witnesses to support the same “conspiracy/false testimony” argument that was raised
and rejected in his Rule 37 proceeding. Two of the three “new” witnesses, Sammy
Ferris and Larry Crowley, offer testimony strikingly similar to the previously offered
and rejected testimony of Rex Lee Ritchie, Michael Hopewell and William Woods.30
Collectively, the hearsay statements of these new witnesses allege that, while Dalton
Smith was incarcerated, he told them about his involvement in “framing” Pigg. For
the first time, Pigg also seeks to buttress his claim with an affidavit from Smith
himself. In this “new affidavit,” signed on August 25, 2016, Smith invokes his rights
under the Fifth Amendment, but claims he will only “speak to [his involvement] in
court.” Doc. 17 at 118-119. Of course, Smith’s evidentiary gamesmanship reduces
the probative value of his affidavit to zero.
The gist of all this so-called “new evidence” amounts to nothing more than
Pigg trying to use different witnesses to retell the same story about Smith conspiring
with other individuals to have Pigg falsely arrested and charged with rape. Pigg

30

Compare the Affidavits of Ritchie, Hopewell, and Woods tendered at Rule 37 hearing
with the Affidavits of Sammy Ferris and Larry Crowley presented in Pigg’s § 2254 Reply Brief.
Doc. 10-13, Exh. D, Tr. 370-373; Doc. 17 at 27, 118-119.
Ferris and Crowley were in jail with Smith. According to Pigg, they would also testify
about Dalton Smith’s jailhouse admissions that he “helped provoke” A.S. and others to “falsely
accuse” Pigg. Id. This proposed testimony is almost identical to the affidavits of Ritchie,
Hopewell, and Woods, all of which were considered and rejected by the trial court and Arkansas
Supreme Court in denying Pigg Rule 37 relief. Doc. 10-13, Tr. at 370-373.

21

argued the same theory in his Rule 37 proceeding, both to the trial court and the
Arkansas Supreme Court. The fact that Pigg has found new witnesses to support a
previously presented claim does not transform their affidavits into “new evidence.”
Rather, Pigg seeks to submit cumulative evidence, which has already been rejected
in his Rule 37 proceeding, to support a claim that was fully adjudicated and properly
rejected in state court.
To satisfy the “newly discovered evidence” test, Pigg must demonstrate that:
(1) the new “factual predicate [ ] could not have been previously discovered through
the exercise of due diligence;” and (2) “the [new] facts underlying the claim would
be sufficient to establish by clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.”

28 U.S.C. § 2254(e)(2)(A)(ii) and (B). Pigg has made no

effort to satisfy the “newly discovered evidence” test to allow the Court to consider
the newly proffered affidavits.
In addition, the so-called “new evidence” is barred because this claim was
fully adjudicated and rejected in Pigg’s Rule 37 proceeding: “If a claim has been
adjudicated on the merits by a state court, a federal habeas petitioner must overcome
the limitation of § 2254(d)(1) on the record that was before the state court.” Cullen
v. Pinholster, 131 S.Ct. at 1398-99). Finally, there was nothing “unreasonable”
about the decisions of the trial court or the Arkansas Supreme Court in rejecting this
22

claim.
Accordingly, Pigg is not entitled to an evidentiary hearing to present and
develop the so-called “new evidence,” including, but not limited to, the details of
Smith’s yet-to-be-revealed first-hand explanation of his alleged conspiracy to
retaliate against Pigg. McCamey v. Epps, 658 F.3d 491, 498 (5th Cir. 2011) (holding
that in light of Pinholster and state court adjudication of petitioner's claim on the
merits, district court erred in considering evidence presented at federal evidentiary
hearing in support of petitioner’s claim).
Pigg’s only basis for obtaining relief on Claim 1 is to demonstrate that the
Arkansas Supreme Court, based on the record before it, unreasonably applied
Strickland in concluding that he suffered no prejudice as a result of his counsel’s
alleged failure to develop the “Dalton Smith defense.”31 He has failed to do so.32

31

Because the Arkansas Supreme Court correctly analyzed this claim solely in terms of
Strickland prejudice, it is not necessary to evaluate the performance of Pigg’s trial counsel. United
States v. Lee, 715 F.3d 215, 221 (8th Cir. 2013) (citation omitted); see also Strickland, 466 U.S.
at 697, 104 S.Ct. 2052 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice . . . that course should be followed.”).
32
The trial court record amply supports the Arkansas Supreme Court’s rejection of this
claim based on its conclusion that the overwhelming evidence of Pigg’s guilt prevented him from
proving Strickland prejudice. The independent evidence of Pigg’s guilt, even without A.S.’s
testimony, included: (1) eyewitness testimony from Pigg’s daughter and W.S. that they witnessed
Pigg and A.S. engaging in oral sex and Pigg proposing marriage to A.S.; (2) testimony from
Pigg’s ex-girlfriend that she observed inappropriate behavior between Pigg and A.S. and that Pigg
asked her to sleep in a different bedroom so A.S. could sleep with him; (3) suggestive photos of
A.S. on Pigg’s cell phone, a video of A.S. dancing, and text message exchanges between A.S. and
Pigg; (4) testimony from Pigg’s niece about Pigg’s sexual abuse of her and her sister; and (5)
physical evidence consistent with A.S. suffering sexual abuse.

23

Finally, the proposed “new evidence” Pigg seeks to present contains no
“smoking gun” which exonerates him. Nothing about Dalton Smith allegedly being
involved in a “conspiracy” to “wrongly” convict Pigg undermines any of the
overwhelming direct and circumstantial evidence of Pigg’s guilt. This is not a hesaid, she-said case, built around the testimony of a single witness. A.S.’s testimony
against Pigg was corroborated by multiple witnesses, including Pigg’s own daughter
and his ex-girlfriend. Even if his counsel had been able to present evidence to
support Pigg’s “conspiracy theory” at trial, no reasonably jury would have
concluded, based on that “new evidence” that Pigg was not guilty. In fact, even if
the jury had heard and believed Pigg’s proposed witnesses’ testimony about Dalton
Smith trying to “frame” Pigg, there was still overwhelming independent evidence,
from other reliable sources, of Pigg’s guilt.
As to Claim 1, Pigg has failed to satisfy his burden of showing that the
Arkansas Supreme Court unreasonably applied Strickland, or that its conclusion was
based on an unreasonable determination of facts in light of the state court record.
Accordingly, this claim should be dismissed, with prejudice.
2.

Claim 2 –Trial Counsel Failed to Properly Investigate,
Discover Witnesses, and Present Evidence to Support
Pigg’s Other Conspiracy Theories

Pigg also faults his trial counsel for not presenting other conspiracy theories
to support his innocence. In fact, Pigg contends that most of the witnesses against
24

him at trial were motivated by revenge to testify falsely against him.33 He also faults
his trial counsel for not calling additional witnesses to support those conspiracy
theories. In analyzing Claim 2, the Court has aggregated and considered all of Pigg’s
conspiracy theories and his arguments that his trial counsel failed to develop and
present testimony in support of those theories during the trial.
In his Reply in further support of his habeas Petition, Pigg identifies 28
witnesses that his attorney should have interviewed and called at trial.34 These
putative witnesses all presumably would have offered testimony related to Pigg’s
contentions that: (1) he was falsely accused; (2) the victims and witnesses against
him had ulterior motives for wanting him falsely convicted of a crime; (3) he suffers
from erectile dysfunction; and (4) he did not commit the criminal acts in question.
Doc. 17 at 25-28. Additionally, scattered through Pigg’s habeas papers are vague
assertions about other topics his trial counsel should have investigated and other

33

The Court will not attempt to catalog all of Pigg’s conspiracy theories, which are
sprinkled throughout his habeas papers. For example, he contends that A.S. “conspired with
others” to accuse him because she and her family blamed Pigg for the arrest of their father in 2010.
Doc. 10-10 at 86-87. He further asserts that he had “proof” that W.S. had admitted her intent to
“get revenge” against him and had previously commented: “I’m King Bitch and I get what I want,
and I’ll get you back because my mom and Uncle Randall told me what to say and its win win.”
Id. at 86-97.
34

During the Rule 37 hearing, Pigg contended his trial counsel failed to interview some “23
witnesses, “who would have refuted the allegations against him. Doc. 17-1 at 12-13. Because
Pigg did not identify those 23 witnesses by name in his Rule 37 hearing, it is impossible to know
how many of them are the same witnesses that he has now identified in his habeas Petition.

25

evidence that should have been presented.35
Some of these claims appear to have been fully adjudicated in the state
postconviction proceeding, while others do not appear to have been fully adjudicated
or arguably were not presented at all. To avoid grappling with complicated issues
of procedural default, the interest of judicial economy weighs in favor of the Court
considering, on the merits, all of the various “conspiracy theories” that comprise
Claim 2. See Trussell v. Bowersox, 447 F.3d 588, 590–91 (8th Cir. 2006) (because
procedural default is not a jurisdictional bar to federal habeas review, it can be
bypassed “in the interest of judicial economy”); see 28 U.S.C. § 2254(b)(2) (“An
application for a writ of habeas corpus may be denied on the merits, notwithstanding
the failure of the applicant to exhaust the remedies available in the courts of the
State.”).36

35

Many of his allegations have no bearing on the criminal issues in the case but appear to
go to Pigg’s general contention of bias. For example, Pigg questions his trial counsel’s failure to
investigate and present evidence of his ex-girlfriend, Ms. Buckalew, taking title to Pigg’s Honda
Accord, in 2010, and forging his name on a bill of sale. Doc. 17 at 74-75.
36

As to those Claim 2 matters that were considered and rejected by the Arkansas Supreme
Court or the trial court, during Pigg’s Rule 37 proceeding, the Court will apply § 2254(d)’s doubly
deferential standard. As to those Claim 2 matters that were not fully adjudicated, the Court will
apply Strickland. Finally, in conducting the Strickland analysis, the Court must be mindful of the
Arkansas Supreme Court’s holding that there was overwhelming evidence of Pigg’s guilt at trial.
See Christenson v. Ault, 598 F.3d 990, 997 (8th Cir. 2010) (citing Strickland, 466 U.S. at 700)
(“When there is overwhelming evidence of guilt presented, it may be impossible to demonstrate
prejudice” under Strickland.).

26

As to Pigg’s argument that his trial counsel should have called other witnesses
to offer testimony on his behalf, much of that proposed testimony would have been
excluded as irrelevant, prejudicial, or otherwise inadmissible hearsay.37
Furthermore, Pigg has failed to demonstrate that his trial counsel’s performance in
failing to call these witnesses was constitutionally deficient. Pigg’s counsel cannot
be faulted for not tendering witness testimony that would have been excluded. See
Dodge v. Robinson, 625 F.3d 1014, 1019 (8th Cir. 2010) (finding counsel’s failure
to raise a meritless claim at trial could not constitute ineffective assistance). In
addition, “[d]ecisions relating to witness selection are normally left to counsel's
judgment and this judgment [should not] be second guessed on hindsight.” Williams
v. Armontrout, 912 F.2d 924, 934 (8th Cir. 1990). An attorney's decision not to
interview or call a particular witness must be viewed from the perspective of counsel
at the time the decision was made. United States v. Williams, 562 F.3d 938, 941 (8th
Cir. 2009). Pigg has failed to prove his attorney’s performance in failing to call
these witnesses was constitutionally deficient.
Pigg also has failed to establish Strickland prejudice. “To establish prejudice
from counsel's failure to investigate a potential witness, a petitioner must show that

37

For example, Pigg identifies Bethany Hancock, who allegedly would have testified that,
while at the Van Buren skating rink, she overheard W.S. boast that she, her mother and her Uncle
Randall Selph had fabricated sexual assault and rape allegations against Pigg in retaliation for
Pigg’s reported complaints “against the family among other reasons and to keep Ashley from
spending time with the petitioner’s family.” Doc. 17 at p. 30.

27

the witness would have testified and that their testimony would have probably
changed the outcome of the trial.” Siers v. Weber, 259 F.3d 969, 974 (8th Cir. 2001).
“In conducting this analysis, [the Court considers]:

(1) the credibility of all

witnesses, including the likely impeachment of the uncalled defense witnesses; (2)
the interplay of the uncalled witnesses with the actual defense witnesses called; and
(3) the strength of the evidence actually presented by the prosecution.” Id. There is
no prejudice if, factoring in the uncalled witnesses, the government’s case remains
overwhelming. Armstrong v. Kemna, 590 F.3d 592, 605 (8th Cir. 2010). Based on
the overwhelming evidence of Pigg’s guilt, none of the putative testimony Pigg now
seeks to offer - even assuming it could and should have been admitted at trial - would
have altered the jury’s verdict.
Pigg has failed to satisfy his burden of showing that he suffered Strickland
prejudice as a result of his trial counsel’s alleged failure to conduct more
investigation, to present other retaliation defenses or to call other witnesses in
connection with the matters that comprise Claim 2. Accordingly, Claim 2 should be
dismissed, with prejudice.

28

3.

Claim 3 – Trial Counsel Failed to Present Evidence of
Pigg’s Erectile Dysfunction38

Pigg contends that his trial counsel was ineffective for failing to admit medical
evidence to show that he suffers from erectile dysfunction. Pigg somehow believes
this evidence would have supported his contention that he was incapable of engaging
in some of the sexual acts the victims and witnesses described at trial.39
During the trial, Pigg’s attorney attempted to offer medical records to support
Pigg’s testimony that he had erectile dysfunction.40 The State objected, pointing out
that the records were hearsay and had not been produced before trial. The Court
sustained the objection and excluded the medical records. Doc. 10-7, Tr. at 1064-

38

In his Rule 37 proceedings, Pigg limited this claim to his trial counsel’s ineffectiveness
during the penalty phase of his trial. While Respondent correctly argues that only the penalty
phase claim is preserved for review, Pigg arguably would be entitled to have the Court consider
this claim, as to the guilt phase of his trial, under Martinez. To avoid that procedural quagmire,
the Court will address this ineffective assistance of counsel claim, on the merits, under Strickland,
and assume that Pigg properly asserted the claim both as to the guilt and penalty phases of his trial.
39

Pigg fails to appreciate that his rape convictions did not require the State to prove he had
sexual intercourse with the victims. See Ark. Code Ann. 5-14-103(a)(3)(A) (Supp. 2017) (defining
rape to include engaging in sexual intercourse or deviate sexual activity with another person who
is less than fourteen (14) years of age; Ark. Code Ann. § 5-14-101(1) (defining deviate sexual
activity); Stewart v. State, 331 Ark. 359 (1998) (evidence of penetration was sufficient to support
rape conviction for sexual intercourse even though defendant did not have an erection); Hoggard
v. State, 277 Ark. 117 (1982) (deviate sexual activity includes penetration of defendant’s mouth
with minor victim’s penis); Lowe v. State, 2016 Ark. App. 389, *4 (evidence was sufficient to
support defendant’s rape conviction for deviate sexual activity based on contact between child
victim’s mouth and defendant’s penis).
40

Pigg insisted on testifying at trial even though his trial counsel advised him that
“testifying was a bad idea” and would only “hurt” his case. Doc. 10-7 at 9. On the witness stand,
Pigg categorically denied having any type of sexual relationship with either A.S. or W.S. Doc.
10-7 at 50.

29

1069; 1277-1296 (proffered medical records).41 Even though the medical records
were not admitted, Pigg testified that he was unable to have sex from July of 2004
forward, based on complications from a ruptured appendix. Doc. 10-7 at 54-56.
The Arkansas Supreme Court ruled that: (1) Pigg failed to establish either
that his counsel’s performance was deficient or that he suffered any prejudice as a
result of the exclusion of this evidence; (2) Pigg failed to identify any argument his
trial counsel could have made to overcome the State’s hearsay objection to the
admission of the records; (3) “the medical report would have been cumulative to
Pigg’s testimony”; and (4) Pigg failed to establish Strickland prejudice. Pigg II,
2016 Ark. 108, *7-9.
To prevail on his argument, Pigg must show that, in rejecting this ineffective
assistance of counsel claim, the Arkansas Supreme Court unreasonably applied
Strickland, or that its conclusion to reject this claim was based on an unreasonable
determination of facts in light of the state court record. Because Pigg has failed to
demonstrate any Strickland prejudice related to this claim, during either the guilt or
sentencing phases, Claim 3 should be dismissed, with prejudice.

41

The medical records relate to Pigg’s treatment for a back injury associated with a
disability claim. The records do not support Pigg’s claim that he was medically incapable of
achieving an erection.

30

4.

Claim 4 – Trial Counsel’s Failure to Suppress 404(b)
Evidence and Move For a Mistrial

Pigg’s sixteen year old niece, Meghan Pigg (“Meghan”), and his sister-in-law,
Loral Jean Pigg (“Loral”), testified that Pigg molested Meghan and her younger
sister, Danielle, when Meghan was eight or nine years old. Doc. 10-6, Tr. 957-959,
962-964. Pigg argues his counsel was ineffective for failing to suppress this
testimony at trial or to move for a mistrial.
In fact, Pigg’s trial counsel attempted, unsuccessfully, to keep this evidence
out. Before trial, Pigg’s trial counsel filed a Motion in Limine to exclude this “prior
bad acts” testimony under Ark. R. Evid. 404(b). Doc. 10-3, Tr. 246-247. During a
pre-trial hearing, the trial court overruled that motion, but required the prosecution
to establish that an intimate relationship existed between Pigg and Meghan in order
to bring the testimony of Meghan and Loral within Rule 404(b)’s pedophile
exception.42 Doc. 10-3, Tr. 373-386.
At trial, the State laid the proper foundation for admitting the testimony under
the pedophile exception. Loral testified that Meghan and Danielle were frequent

42

Arkansas recognizes a “pedophile exception” to Ark. R. Evid. 404(b)’s presumptive
exclusion of similar other bad acts. Under the exception, “evidence of similar bad acts with the
same or other children” is admissible when it is helpful in showing “a proclivity for a specific act
with a person or a class of persons with whom the defendant has an intimate relationship.” Bryant
v. State, 2010 Ark. 7, at 18, 377 S.W.3d 152, 163. Application of the exception requires a sufficient
degree of similarity between the proposed evidence and the sexual conduct at issue and an intimate
relationship between the defendant and the victim of the prior act.

31

visitors to Pigg’s home,43 and sometimes spent the night there.44 According to Loral,
Meghan initally complained that Pigg was abusing her and Danielle by rubbing their
genitals with ointment for an alleged “rash.” This prompted Loral to stop allowing
the girls to stay overnight at Pigg’s residence. However, she later permitted them to
resume visiting Pigg after her husband (Pigg’s brother) convinced her that the
ointment was “an innocent thing.” After Meghan reported that “more things were
going on . . . than just [Pigg] putting ointment on them for rashes[,]” Loral
permanently ended the visits and alerted the police.45
Meghan testified that, when she was eight years old, she and Danielle visited
Pigg’s home on numerous occasions to go swimming. Id., Tr. 962. She testified
that Pigg penetrated her digitally, under the guise of applying ointment to her vagina.
Id. at 962-64. After Pigg attempted to do the same thing to Danielle, she told her
mother, Loral, to protect her sister from further abuse by Pigg. Id. at 964.
In Pigg’s Rule 37 proceeding, the Arkansas Supreme Court rejected Pigg’s
argument that his attorney provided ineffective assistance of counsel in failing to
have this testimony suppressed under Ark. R. Evid. 404(b), or, failing that, to move

43

At the time, Pigg lived in Raymar, Tennessee. Loral and her family lived nearby, in
Selmar, Tennessee. Doc. 10-6, Tr. 955-956.
44

Doc. 10-6, Tr. 957.

45

Doc. 10-6, Tr. 957-59. On cross-examination, Loral explained that the case was “put on
the back burner” because of a contested, contentious Sheriff’s race and later dropped after Pigg
and his ex-girlfriend, Buckalew, moved from Tennessee to Arkansas. Id. at 960.

32

for a mistrial: “[t]he trial court correctly found that Pigg did not identify any
meritorious argument that counsel might have made to object to the Rule 404(b)
evidence [from Meghan or Loral] or move for a mistrial.”46 Pigg II, 2016 Ark. 108
at *8. The Court also found that Pigg failed to establish either ineffectiveness or
prejudice. Id. at *9.
In his habeas papers, Pigg points to the fact that his brother (Loral’s husband)
failed to testify regarding the abuse allegations, and no evidence was presented that
Meghan’s and Loral’s allegations of sexual abuse were investigated by legal
authorities.47 While that may be true, it provides no support for Pigg’s claim that his
attorney was constitutionally ineffective for failing to exclude testimony of Loral
and Meghan or to obtain a mistrial. Pigg presents no legal arguments his counsel
could have made that would have provided a basis for excluding that testimony.
Similarly, Pigg has made no showing of prejudice.

46

During the Rule 37 hearing, the trial court asked Pigg how his attorney was supposed to
suppress the 404(b) evidence. Pigg replied that Loral, Meghan’s mother, was not able to “prove
in any way that she went to the proper authorities” and pointed out the absence of a police report,
interviews, or any “proof from Tennessee” that the incident was reported. Doc. 10-12, Tr. 184185. At best, this is evidence that might have been used to impeach Meghan and Loral. However,
it did not provide a basis for excluding their testimony.
47

At trial, Pigg was cross-examined about Loral and Meghan’s accusations, which he stated
were lies. Pigg hypothesized that: “if there was - - those accusations were true, there would have
been an investigation, and I would have been arrested in Tennessee[.]” Doc. 10-7, Tr. at 1139.

33

Pigg has failed to satisfy his burden of showing that the Arkansas Supreme
Court, in considering Claim 4, unreasonably applied Strickland, or that it based its
decision on an unreasonable determination of facts in light of the state court record.
Accordingly, Claim 4 should be dismissed, with prejudice.
D.

Pigg’s Procedurally Defaulted Claims That Qualify For Analysis
Under Martinez
1.

Claim 6 - Trial Counsel’s Failure to Object to the
State’s Witnesses on Direct Examination and During
Closing Argument

Pigg argues that his trial counsel “allowed [the] prosecution to repeatedly
induce prejudicial responses” and failed to object to the prosecutor’s “improper
leading and suggestive questions” and “improper vouching.”48 Doc. 17 at p. 78-79.
Pigg has attached to his Reply Brief various excerpts from trial testimony, closing
argument, the Rule 37 hearing, and Pigg’s statement to police. See Pigg’s Doc. 171, Exh. 43 at pp. 242-308. Pigg uses these excerpts to argue his trial counsel failed
to object to “leading” or “suggestive” testimony or “vouching” by the State
prosecution. None of Pigg’s arguments, however, demonstrate a substantial claim
that his counsel’s constitutionally deficient performance prejudiced the outcome of
his trial.

48

This claim is similar to Claim 5, which alleges that Pigg’s trial counsel provided
constitutionally inadequate cross-examination of the State’s witnesses. As previously noted,
Claim 5 is procedurally barred and not subject to Martinez.

34

For example, Pigg complains that, during the prosecutor’s opening statement,
he made the following comment: “I’m going to walk you through what I think the
evidence will show[;] What I think my witnesses will testify to[;] and [W]hy I think
the defendant, here, is guilty of the offense of rape.” Doc. 10-4, Tr. at 540 (emphasis
added). 49 This is not improper vouching. See U.S. v. Coutentos, 651 F.3d 809, 821,
86 Fed. R. Evid. Serv. 155 (8th Cir. 2011) (“Improper vouching may occur when the
prosecutor: ‘(1) refers to facts outside the record or implies that the veracity of a
witness is supported by outside facts that are unavailable to the jury; (2) implies a
guarantee of truthfulness; or (3) expresses a personal opinion about the credibility
of a witness.’”) (quoting U.S. v. McClellon, 578 F.3d 846, 858 (8th Cir. 2009)). Nor
did the prosecutor’s statement cross the line in expressing a personal belief that
might inflame the jury. See, e.g., Jefferson v. State, 372 Ark. 307, 321-322 (2009)
(“Although it is not good practice for counsel to inject their personal beliefs into the
closing arguments, mere expressions of opinion by counsel in closing argument are
not reversible error so long as they do not purposefully arouse passion and
prejudice.”) (omitting citation and internal quotations).

49

Other examples cited by Pigg include the prosecutor’s following statements in closing
argument: (1) Meghan “still lives in Selmar, Tennessee, with her mother. . . . [s]he had no reason
to come here.” (2) “You get to . . . decide why [A.S.] and [W.S.] and Haley and Meghan and
Krystal and Debra and Detective Wear -- why they’re credible; why they were telling the truth.”;
and (3) “[I]t’s time to make him responsible, finally, for his actions. Find him guilty of
everything.” Doc. 10-7, Tr. at 1198, 1208, 1210. None of these statements by the prosecutor were
based on any evidence not presented at trial.

35

Pigg’s arguments in support of Claim 6 fail to demonstrate that the allegedly
deficient performance of his trial counsel even arguably impacted the jury’s guilty
verdict. Accordingly, because Pigg has failed to make a substantial showing of
ineffective assistance of counsel, Martinez does not excuse Pigg’s procedural default
of Claim 6 and it should be dismissed, with prejudice.
2.

Claim 7 – Trial Counsel’s Failure to File a Motion to
Suppress Evidence from a Search of Pigg’s Cell Phone

Pigg argues his trial counsel was ineffective for failing to file a motion to
suppress evidence seized from Pigg’s cell phone, including multiple pictures of A.S.,
that were used against him at trial. The police seized Pigg’s cell phone incident to
his arrest, after which they applied for and received a search warrant authorizing the
seizure of the content of Pigg’s phone.50 Doc. 10-5, Tr. 719.51

50

At trial, Detective Wear testified about the circumstances of Pigg’s arrest and the seizure
of his cell phone. While he was at the home of the victims investigating the allegations against
Pigg, Detective Wear saw Pigg drive by on a motorcycle. Detective Wear followed Pigg and
initiated his lights in an effort to make a felony traffic stop. Initially, Pigg stopped, but before
Detective Wear could place him under arrest, Pigg fled on his motorcycle. The chase ended when
Pigg crashed his motorcycle into a tree. Pigg was arrested and his cell phone was seized incident
to the arrest. Police later obtained a warrant authorizing them to search Pigg’s cell phone for
evidence. Doc. 10-4, Tr. 563-565; 581-85.
Arkansas law allows law enforcement to arrest a person without a warrant if there is
reasonable suspicion to believe the person arrested has committed a felony. Ark. R. Crim. P.
4.1(a)(i) (2012). Here, the policy had ample “reasonable suspicion” to arrest Pigg for felony rape.
51

The Affidavit used to secure the search warrant is not in the record. At trial, Pigg’s
counsel objected to the introduction of the Affidavit as hearsay. The Court sustained that
objection. Doc. 10-4, Tr. 569-570.

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At trial, evidence was introduced of photos and video clips found on Pigg’s
phone.52 The primary victim in the case, A.S., identified approximately 35 pictures
found on Pigg’s phone and a video of herself dancing.53 Doc. 10-6, Tr. at 887, 892895, 997-1038 (State Exhibits 24, 15-65). On cross-examination, Pigg admitted he
took or received the pictures of A.S. seized from his phone. Doc. 10-7 at 58-61, 70.
Pigg argues the search and seizure of his cell phone violated his Fourth
Amendment rights and that all evidence obtained from the search of his cell phone
should have been suppressed. Doc. 17 at 69-70. He further argues that, once he was
arrested, his cell phone should have been returned to him, and he faults the arresting
officers for unlawfully removing his phone from his jacket pocket and holding it “to
obtain a probable cause search warrant.” Doc. 17 at 69-71.
Pigg’s phone was seized incident to his lawful arrest. There is no suggestion
that police searched the cell phone until after the warrant was issued. Under these
circumstances, Pigg’s only colorable legal argument is that the search warrant was
issued without probable cause.

52

Detective Michael Warren, a forensic examiner with the Fort Smith Police Department,
testified that he examined Pigg’s cell-phone and recovered 208 deleted and partially overwritten
photos and 18 video clips. Doc. 10-5, Tr. 741-742, 750-75.
53

While A.S. is posing provocatively in some of these photos, she is wearing clothes.
However, she testified that she also sent Pigg pictures of herself with no clothes on. Doc. 10-6,
Tr. at 895-896.

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To save this claim from procedural default under Martinez, Pigg must
demonstrate that this claim: (1) has “some merit”; and (2) is supported by at least
some facts. Martinez, 566 U.S. at 14-16. “Where counsel's failure to competently
litigate a suppression issue is the focus of the ineffective-assistance claim, to
demonstrate prejudice, the petitioner must also prove that his Fourth Amendment
claim is meritorious and that there is a reasonable probability that the verdict would
have been different absent the excludable evidence.” Hogan v. Kelley, 826 F.3d
1025, 1028 (8th Cir. 2016), cert. denied, 138 S. Ct. 635 (2018) (quoting Kimmelman
v. Morrison, 477 U.S. 365, 375 (1986) (omitting internal quotations)). On both the
performance and prejudice prongs, Pigg fails to present a substantial claim.
The Fourth Amendment favors searches conducted pursuant to a warrant, and
far less judicial scrutiny applies to such searches. Ornelas v. U.S., 517 U.S. 690,
699 (1996) (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)).
Pigg offers no colorable legal argument that the search of his cell phone
violated his Fourth Amendment rights. Pigg’s reliance on Riley v. California, 134
S.Ct. 2473, 2495 (2014), is misplaced. Riley established, as a general rule, that
police may not search digital information on a cell phone incident to arrest without
a search warrant. Here, the police obtained a search warrant before searching Pigg’s
phone. Pigg asserts that the search warrant “was defective,” but he fails to present

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any colorable argument to support this conclusory assertion.54 Doc. 17 at 70. In
short, there is no legally plausible basis upon which Pigg’s trial lawyer could have
filed a motion to suppress the evidence seized from Pigg’s cell phone or to otherwise
challenge the constitutionality of the search warrant or the search of the cell phone
conducted incident to that warrant.
Even if Pigg’s trial counsel could have demonstrated that the cell phone
evidence was obtained in violation of the Fourth Amendment, it is extremely
unlikely it would have resulted in the suppression of the evidence. See Herring v.
United States, 555 U.S. 135, 137, 141 (2009) (“We have repeatedly rejected the
argument that exclusion is a necessary consequence of a Fourth Amendment
violation.”). Evidence obtained in a search later found to be unconstitutional “should
be suppressed only if it can be said that the law enforcement officer had knowledge,
or may properly be charged with knowledge, that the search was unconstitutional
under the Fourth Amendment.” Illinois v. Krull, 480 U.S. 340, 348-49 (1987)
(internal quotation marks and citations omitted); see also United States v. Leon, 468
U.S. 897 (1984) (holding Fourth Amendment exclusionary rule inapplicable to
police officers who acted in objectively reasonable reliance on a search warrant
lacking probable cause but which was issued by a neutral magistrate); Yancy v.

54

For example, he contends the “affidavit was not in compliance” but he fails to explain
how or why, or to otherwise demonstrate a Fourth Amendment violation.

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State, 345 Ark. 103, 118–120 (2001) (applying the good faith exception to the
exclusionary rule to a search warrant that violated Arkansas Rule of Criminal
Procedure 13.1).
Pigg does not argue or present any supporting evidence that the police officer
who later obtained the search warrant to examine the phone’s contents knew that his
actions were unconstitutional or that he took those actions in bad faith.
Pigg also fails to make a substantial showing of Strickland prejudice. Any
contention that the outcome of the trial would have been different, but for
introduction into evidence of the pictures and the video from his phone, is
completely lacking in merit.
Pigg has failed to demonstrate either a meritorious Fourth Amendment claim
or that the jury’s verdict would have been different if the evidence from his cell
phone had been suppressed. Accordingly, because Pigg has failed to demonstrate
that Claim 7 is substantial, Martinez does not excuse Pigg’s procedural default of
that claim and it should be dismissed, with prejudice.
3.

Claim 8 – Trial Counsel’s Failure to Suppress Pigg’s
Interview with Detective Wear

Pigg argues that his attorney should have moved to suppress his January 2012
interview with Detective Wear. During the trial, a videotape of that interview was
played for the jury. Pigg voluntarily agreed to the interview, and he signed a form
waiving his Miranda rights before the interview took place. Doc. 10-4, Tr. 602-603;
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Doc. 10-5, Tr. at 612 (Miranda form); Doc. 10-5, Tr. at 614-707 (transcript of
interview).55
In his habeas papers, Pigg does not deny that he validly waived his Miranda
rights. Nor does he identify any valid legal basis for suppressing the interview.
Obviously, Pigg’s trial counsel cannot be faulted for not moving to suppress an
interview Pigg agreed to give. See Bell v. Norris, 586 F.3d 624, 631 (8th Cir. 2009)
(no Miranda violation because defendant waived rights verbally and in writing).
Because Claim 8 lacks any merit, Martinez does not excuse Pigg’s procedural
default of that claim. Accordingly, Claim 8 should be dismissed, with prejudice.
E.

Actual Innocence Exception

Although Pigg offers no argument, other than Martinez, to excuse his
procedurally defaulted claims, the Court has considered, sua sponte, whether Pigg
has demonstrated a “gateway actual innocence claim” that might excuse his
procedural default. Even procedurally defaulted claims may be reviewed when a
habeas petitioner comes forward with new evidence to support a claim of actual
innocence. Schlup v. Delo, 513 U.S. 298, 327 (1995) (actual innocence exception
requires a petitioner to show that it is more likely than not that no reasonable juror

55

In the interview, Pigg admitted taking A.S., W.S. and his daughter to Fayetteville and
staying in a hotel room for one night, but he denied sleeping in the same room with A.S. or giving
her a ring on the trip. He categorically denied any sexual contact with any of the girls and
contended any stories to the contrary were lies.

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would have convicted him in light of the new evidence.”); Nash v. Russell, 807 F.3d
892, 898 (8th Cir. 2015) (citing Schlup).
The United States Supreme Court has described “new reliable evidence,” as
“exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence -- that was not presented at trial.” Schlup, 513 U.S. at 324. The
Eighth Circuit has further explained that “new evidence” is evidence that was not
available at trial and could not have been discovered earlier through the exercise of
due diligence. Nash, 807 F.3d at 899 (quoting Amrine, 238 F.3d at 1028) (citation
omitted). Pigg has not presented any new evidence, that was unavailable to him
through the exercise of reasonable diligence at trial, and that would establish his
innocence.56 Nor can Pigg satisfy his burden of demonstrating “it is more likely
than not that no reasonable juror would have convicted him in the light of the new
evidence.” Schlup, 513 U.S. at 327. Accordingly, the actual innocence exception
has no application to the facts in this case.

56

See Kidd v. Norman, 651 F.3d 947, 953 (8th Cir. 2011) (habeas petitioner must “come
forward not only with new reliable evidence which was not presented at trial, but ... come forward
with new reliable evidence which was not available at trial through the exercise of due diligence.”);
Oglesby v. Bowersox, 592 F.3d 922, 926 (8th Cir. 2010) (“a habeas petitioner [must] present new
evidence that affirmatively demonstrates that he is innocent of the crime for which he was
convicted”) (quoting Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)); Embrey v. Hershberger,
131 F.3d 739, 741 (8th Cir. 1997) (“in noncapital cases the concept of actual innocence is easy to
grasp, because it simply means the person didn't commit the crime”).

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III. Conclusion
All of Pigg’s habeas claims either fail on the merits, or are procedurally
defaulted. Accordingly, all of those claims should be dismissed, with prejudice.
IT IS THEREFORE RECOMMENDED THAT the Petition for a Writ of
Habeas Corpus be DENIED and this habeas case be DISMISSED, WITH
PREJUDICE. IT IS FURTHER RECOMMENDED THAT a Certificate of
Appealability (“COA”) be DENIED pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases.57
Dated this 30th day of May, 2018.
____________________________________
UNITED STATES MAGISTRATE JUDGE

57

The COA should be denied because Pigg has not shown that reasonable jurists could
debate whether his petition should be resolved in a different manner or that the issues presented
are adequate to deserve encouragement to proceed further. See Miller–El v. Cockrell, 537 U.S.
322, 336 (2003).

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