Quincy Jay Plessy v. Ray Hobbs

Filing 25

ORDER adopting 19 Report and Recommendations to the extent it does not conflict with this Order; denying 23 Motion to Appoint Counsel and denying 23 Motion for Order; denying 24 Motion for Certificate of Appealability; ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Honorable P. K. Holmes, III on February 9, 2015. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
QUINCY JAY PLESSY
v.

PETITIONER
Case No. 2:12-CV-02118

RAY HOBBS, Director, Arkansas Department of Corrections

RESPONDENT

ORDER

The Court has received proposed findings and recommendations (Doc. 19) from Chief United
States Magistrate Judge James R. Marschewski.1 The Court has conducted a careful review of the
findings and recommendations and of objections (Docs. 21, 22) filed by Petitioner Quincy Jay
Plessy. After reviewing the record de novo as to Plessy’s objections, the Court finds as follows:
As a preliminary matter, Plessy states that he “amended his petition raising only three
grounds for relief for the Court to consider.” (Doc. 21, p. 1 (citing Doc. 15)). Furthermore, Plessy
presented arguments only as to the following three alleged grounds for relief in his objections: (1)
ineffective assistance of counsel in that trial counsel did not adequately investigate forensic evidence
as to trajectory of the bullets, which investigation Plessy alleges would have challenged the
credibility of the testimony of accomplice Jamal Gibson and bolstered Plessy’s own credibility; (2)
ineffective assistance of counsel in that trial counsel did not adequately impeach the testimony of
Aquilla Owens with a prior inconsistent statement; and (3) the trial court’s violation of the
confrontation clause by allowing testimony as to the victim’s contradictory dying declarations. As
Plessy has only presented objections as to these grounds for relief, and as the Court otherwise finds
the Magistrate’s report to be proper and absent clear error as to any other claims for relief previously

1

Judge Marschewski is now retired and on recall status, but was Chief Magistrate at the time
the report was entered.

advanced by Plessy, the Court will address Plessy’s objections in the context of only the three
grounds for relief listed above.
Plessy attached an exhibit to his objections showing he mailed a motion for extension of
time/leave to file a reply to respondent’s response on July 11, 2014. For whatever reason, that
motion was never received by the Court, and the Magistrate’s report was entered without Plessy
having filed a reply.

Nevertheless, Plessy has been able to respond to the report and

recommendations of the Magistrate, and the Court has considered that response. It does not appear
that Plessy therefore suffered any prejudice as a result of his motion for extension not having been
received.
Plessy first objects to the Magistrate’s recommendations by arguing that he was prevented
from being able to sufficiently develop the factual support for his claims. In this vein, Plessy objects
that he was never given an evidentiary hearing, citing to Sasser v. Hobbs, 735 F.3d 833, 853 (8th Cir.
2013). The remand for an evidentiary hearing in Sasser was based on the Supreme Court’s decisions
in Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013). The
Supreme Court in Martinez held that “[w]here, under state law, claims of ineffective assistance of
trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not
bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the
initial-review collateral proceeding, there was no counsel or counsel in that proceeding was
ineffective.” 132 S.Ct. at 1320. Trevino expanded the Martinez holding to apply where the “state
procedural framework, by reason of its design and operation, makes it highly unlikely in a typical
case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance

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of trial counsel on direct appeal.” 133 S.Ct. at 1921. The Eighth Circuit held in Sasser that Martinez
and Trevino apply to cases arising from Arkansas. 735 F.3d at 853.
Here, Plessy actually raised the same issues of ineffective assistance of counsel he raises in
his second amended habeas petition in his Rule 37 petition in the Sebastian County Circuit Court.
(Doc. 7-1, p. 3). However, those claims were not addressed by the circuit court. “The trial court’s
order address[ed] only the issues [Plessy] raised in an amended petition that [Plessy] later filed, and
it did not address those issues in the original petition.” (Order of Supreme Court of Arkansas,
dismissing Plessy’s appeal of denial of Rule 37 petition, Doc. 18-4, pp. 1-2). On appeal of his Rule
37 petition, Plessy asked the Supreme Court of Arkansas to “reinvest jurisdiction” in the circuit court
so that the circuit court could address the claims raised in his original petition. Id. The Supreme
Court dismissed Plessy’s appeal, holding that the fact of Plessy’s incarceration did not excuse him
from following appropriate procedure in seeking review of his claims. Id. Plessy did not
procedurally default on his claims in the sense that he completely failed to raise them in state court.
Plessy did, however, procedurally default on the claims in the state court proceeding itself as a result
of his inexpertise in the law. The Court finds that the circumstances of this case are such that
procedural default of those claims may be excused pursuant to Martinez and Trevino as the claims
were not properly presented due to the fact that Plessy was proceeding without the assistance of legal
counsel.
As the Eighth Circuit has stated:
“In light of Trevino and Sasser, the equitable exception to procedural default applies
to [Plessy’s] claims [of ineffective assistance of trial counsel] if [Plessy] meets the
criteria established in Martinez. A federal court is allowed to find ‘cause,’ thereby
excusing a habeas petitioner’s procedural default in Arkansas, where (1) the claim
of ineffective assistance of trial counsel was a ‘substantial’ claim; (2) the ‘cause’
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consisted of there being ‘no counsel’ or only ‘ineffective’ counsel during the state
collateral review proceeding; and (3) the state collateral review proceeding was the
‘initial’ review proceeding with respect to the ‘ineffective-assistance-of-trial-counsel
claim.’”
Dansby v. Hobbs, 766 F.3d 809, 834 (8th Cir. 2014) (quoting Trevino, 133 S. Ct. at 1918). “A
‘substantial’ ineffective-assistance claim is one that has some merit.” Id. Sasser does not establish
a rule whereby all procedurally defaulted ineffective-assistance claims must be considered via an
evidentiary hearing. Rather, “it stands as authority that [the] court may evaluate whether claims of
ineffective-assistance are ‘substantial’ or ‘potentially meritorious’” in the course of determining
whether an evidentiary hearing is warranted. Id. Because the Court finds, as set forth below, that
Plessy’s claims are not substantial or otherwise potentially meritorious, the Court finds that no
evidentiary hearing was mandated or warranted in this case.
The only ineffective assistance argued by Plessy in his objections are his trial counsel’s
failure to properly impeach Aquilla Owens and his trial counsel’s failure to adequately investigate
forensic evidence. Neither of these alleged failures was so substantial as to render Plessy’s trial
counsel ineffective. First, “how much to impeach a witness is generally a matter of trial strategy left
to the discretion of counsel.” Id. at 835. Furthermore, even if Plessy’s counsel was ineffective for
not impeaching Owens with her prior inconsistent statement, Plessy has not made a substantial claim
of prejudice. There was strong evidence to support the jury’s finding of guilt, including Plessy’s
statement to Britney Camese on the day of the murder that “he had to shoot somebody” (Doc. 18-7,
p. 8), the victim’s statement of “Q” in response to the first responder’s question as to who shot him,
and the testimony of accomplice Jamal Gibson, who testified that he was present when Plessy shot
the victim. Forensic evidence supported Jamal’s story that Plessy shot the victim while Plessy was

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driving his car, the victim was in the rear passenger seat, and Jamal was in the front passenger seat.
Brandon Djordjevic with the Fort Smith Police Department testified that he determined, independent
of hearing any theory of the case, that the trajectory of the bullets was from the driver’s seat to the
rear passenger seat. (Doc. 18-8). Djordjevic also found Plessy’s fingerprints on the driver’s side
door and Gibson’s on the passenger’s-side door. Id. It is undisputed that the victim threw himself
from the rear of Plessy’s car after he had been shot.
There is no reasonable probability that impeachment of Owens as to a prior inconsistent
statement would have made any difference in the outcome of the trial. Furthermore, Plessy
mischaracterizes Owens’s testimony at trial. Plessy argues that “it was impossible for Ms. Q
[Owens] to see the petitioner picking up the victim at or between 3:45 p.m. and 4:00 p.m. because
the victim was picked up by Gibson at around 4:54 p.m.” (Doc. 22, p. 8). Owens did not testify that
she saw Plessy picking up the victim between 3:45 and 4:00. Rather, Owens testified that she saw
Plessy around 3:45 or 4:00 on the day of the murder and talked to him for 30 to 40 minutes. (Doc.
18-9, p. 4). Owens stated that Plessy then drove his car to the area of the apartment where the victim
was and “parked for a while. And then they all got back in the car, and [the victim] got back in the
car.” Id. It was not unreasonable for Plessy’s counsel to not impeach Owens about any fairly minor
difference in the exact time that she saw Plessy or the exact length of time she spoke to him.
As to trial counsel’s failure to adequately investigate forensic evidence, Plessy argues that
the victim received wounds to the right side of the body that would have been arguably inconsistent
with Jamal Gibson’s version of events—that Plessy shot the victim from the driver’s seat. However,
as already discussed, the testimony of Officer Djordjevic tended to support Gibson’s story.
Furthermore, Gibson testified that the victim fell over in the backseat at some point during the
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shooting and then threw himself out the rear door behind the driver’s seat. (Doc. 18-5, p. 8). A
wound from the right to left side of the victim’s body would not necessarily be inconsistent with the
victim attempting to escape via the driver’s side of the car. Plessy states that “[i]t is assumed counsel
reviewed the autopsy report by Dr. Konzelmann, but must have overlooked the analysis concerning
the wounds the victim received.” (Doc. 22, p. 3). Plessy’s claim of inadequate investigation appears
to be based on an assumption. The Court cannot simply assume that Plessy’s counsel failed to
investigate when it was reasonable for counsel to not make an issue of the trajectory of the wounds
at trial. The Court finds that Plessy has not stated a substantial claim of ineffective assistance or of
prejudice in regard to his counsel’s failure to adequately investigate forensic evidence.
Plessy also objects that the trial court violated the confrontation clause by allowing testimony
as to the victim’s contradictory dying declarations. “Under Crawford . . . the Confrontation Clause
has no application to [nontestimonial] statements and therefore permits their admission even if they
lack indicia of reliability.” Whorton v. Bockting, 549 U.S. 406, 420 (2007) (citing Crawford v.
Washington, 541 U.S. 36 (2004)). Statements are nontestimonial when made in the course of an
ongoing emergency, where the purposes of the statement is not primarily “to establish or prove past
events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822
(2006). The victim’s dying declarations in this case were not testimonial. The victim made an
informal statement to a bystander and to a first responder at the scene, immediately after being shot,
during a time when the perpetrator was unknown and unapprehended. It is important for first
responders to be able to ensure that a shooter is not in the immediate vicinity when tending to a
victim. Plessy was able to challenge the reliability of the victim’s statement at trial. He did not have
a constitutional right to confront the declarant. Therefore, even assuming Plessy’s claim was not
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procedurally defaulted for failure to raise a federal confrontation clause claim during his direct
appeal in state court, his claim fails on the merits. The trial court’s ruling did not conflict,
unreasonably or otherwise, with established constitutional law. See 28 U.S.C. § 2254(d)(1).
Plessy also objects on procedural grounds that his motion for discovery (Doc. 16) was
summarily denied by the Magistrate (Doc. 17) and he was therefore not afforded a reasonable
process to obtain factual support for his claims. “The ‘good cause’ that authorizes discovery under
Rule 6(a) [of the Rules Governing Section 2254 Cases in the United States District Courts] requires
a showing that the petitioner may, if the facts are fully developed, be able to demonstrate that he is
entitled to habeas relief.” Rucker v. Norris, 563 F.3d 766, 771 (8th Cir. 2009) (internal quotation
omitted). Plessy does not cite to any specific facts that he believes could have been more developed
to support his claims, nor can the Court find that any more fully developed facts would have enabled
Plessy to demonstrate entitlement to habeas relief.
Finally, Plessy objects that Respondent never filed a complete trial transcript of Plessy’s
criminal trial or a copy of Plessy’s direct appeal brief and so the Court could not effectively assess
the merits of Plessy’s claims. Plessy does not, however, point to any specific deficiencies in the
record that would prevent the Court from adequately addressing his claims. Rule 5(c) of the Rules
Governing Section 2254 Cases requires only that respondent “attach to the answer parts of the
transcript that the respondent considers relevant.” The Court finds that the record was sufficient to
enable the Court to rule on Plessy’s claims.
IT IS THEREFORE ORDERED that the report and recommendation (Doc. 19) is ADOPTED
to the extent it does not conflict with this order.

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IT IS FURTHER ORDERED that Petitioner’s motion for a complete trial transcript and for
appointment of counsel (Doc. 23) is DENIED. Judgment will be entered dismissing this case, so
there is nothing left to litigate. If Petitioner chooses to appeal and his appeal is accepted by the
Circuit Court, he can bring up these issues on appeal.
IT IS FURTHER ORDERED that Petitioner’s motion for certificate of appealability is
DENIED, as it was filed prematurely, prior to this final order being entered. Petitioner can file a new
motion for certificate of appealability after review of this order.
IT IS FURTHER ORDERED that Mr. Plessy’s petition is DISMISSED WITH PREJUDICE.
Judgment will be entered accordingly.
IT IS SO ORDERED this 9th day of February, 2015.

s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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