The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
QUENTIN KYLE GREEN, PETITIONER
v. 4:20CV001449-LPR-JTK
DEXTER PAYNE RESPONDENT
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The following recommended disposition has been sent to United States District Judge Lee
P. Rudofsky. Any party 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
objections; and (2) be received by the Clerk of this Court within fourteen (14) days of this
Recommendation. By not objecting, you may waive the right to appeal questions of fact.
DISPOSITION
I. Introduction
On May 18, 2016, a criminal information filed in the Circuit Court of Miller County,
Arkansas, charged Quention Kyle Green (“Petitioner”) with one count of rape and one count of
sexual assault in the second degree. State v. Green, 46CR16-388; (Doc. No. 7-7 at 6). Ultimately,
a jury convicted Petitioner of the charges. (Doc. No. 7-2 at 33, 34). Attorney Joe Tyler (“Tyler”)
represented Plaintiff during the criminal proceedings.
Petitioner appealed. (Doc. No. 7-3). His convictions were upheld by the Arkansas Court
of Appeals in a January 24, 2018 opinion. Green v. State, 2018 Ark. App. 38 (2018); (Doc. No.
7-5). Petitioner then unsuccessfully sought relief under Rule 37 of the Arkansas Rules of Criminal
Procedure. (Doc. No. 7-7 at 8, 101). On February 19, 2020, the Arkansas Court of Appeals
affirmed the denial of Rule 37 relief. Green v. State, 2020 Ark. App. 130, 1–5 (2020). The
Arkansas Supreme Court denied Petitioner’s petition for review on April 23, 2020. (Doc. No. 7-
14).
Petitioner now seeks relief pursuant to 28 U.S.C. §2254. (Doc. No. 1). He argues that
Tyler violated the Arkansas Rules of Professional Conduct along with Petitioner’s rights under the
Sixth and Fourteenth Amendments. Petitioner’s claims are based largely on the fact that Tyler’s
law partner Craig Barrett (“Barrett”) was romantically involved with the prosecuting attorney who
prosecuted the criminal case against Petitioner.
Petitioner raises the following five claims in his § 2254 petition: (1) the circuit court erred
in refusing to hold that defense counsel had a conflict of interest not remedied by a valid waiver;
(2) counsel was ineffective by his failure to object to inadmissible testimony from Melanie
Halbrook of the Child Advocacy Center; (3) counsel was ineffective by his failure to object to
testimony of witnesses quoting the accuser and not seeking an instruction that their testimony was
not being admitted for the truth of the matter asserted; (4) counsel was ineffective for failure to
object to improper impeachment of a defense witness; and (5) counsel was ineffective by failure
to present or seek to present testimony concerning the accuser’s source or inspiration to make the
original claim of abuse.
II. Background
Relevant portions of the underlying proceedings are provided below.
A. The Charges Against Petitioner and the Ensuing Jury Trial
Petitioner was accused of the rape and second-degree sexual assault of his 10-year-old
stepdaughter, K.B. K.B. told her mother of the abuse; her mother in turn confronted Petitioner.
(Doc. No. 7 at 2). When K.B.’s mother later talked to K.B. to verify the abuse, the mother
explained that Petitioner would go to jail and K.B.’s younger sister would be without her father.
(Id.). K.B. then recanted her allegation; the recantation was videoed by attorney Michael Peek
“Peek.” (Id.).
Several years later, K.B. reiterated the allegations of abuse. (Id.). K.B. explained in an
interview with Melanie Halbrook (“Halbrook”), a forensic interviewer with the Child Advocacy
Center (“CAC”), that she recanted her allegations because her mother did not believe her. (Id.).
K.B. also reported that Petitioner had continued the abuse. (Id.). K.B.’s renewed allegations led
to the rape and second degree sexual assault charges.
The Arkansas Court of Appeals accurately described the evidence adduced at Petitioner’s
trial as follows:
Lyndi Green, appellant’s former wife, testified that she has four children. K.B. is
one of her middle children. Ms. Green testified that when K.B. was ten years old,
K.B. told her that appellant, K.B.’s stepfather at the time, had touched her
inappropriately under her pajamas and under her panties. Appellant denied the
allegations after Ms. Green confronted him about the incident. Ms. Green testified
that on that same night that she confronted appellant, appellant indicated that he
thought about killing himself. After that incident, Ms. Green had K.B. stay with her
grandparents and took K.B. to see a counselor. A few days later and after further
conversations with Ms. Green about the ramifications of the allegations, K.B.
recanted her story, apologized to appellant, and returned home. Additionally, the
family went to an attorney, Michael Peek, and a video was taken of K.B. explaining
that she had recanted her story. A few years later, K.B. told Ms. Green that she had
lied when she had recanted her story. Additionally, K.B. told her biological father
about the incident, and it was reported to law enforcement.
Officer Patsy DeHart testified that she was the investigator assigned to the case
against appellant in 2016. Officer DeHart testified that law enforcement had
received a call on the Arkansas State Police hotline with the allegations. Arkansas
State Police Crimes Against Children Division took the initial report, and it was
screened by the Arkansas Department of Human Services (DHS). Officer DeHart
contacted the Children’s Advocacy Center (CAC) and arranged for K.B. to be
interviewed.
Melanie Halbrook, a forensic interviewer at the CAC in Benton County, testified
that she had interviewed K.B. K.B. was fifteen years old at the time of the interview.
Ms. Halbrook testified that during the interview, K.B. disclosed that appellant had
digitally penetrated her when she was ten or eleven years old. Although K.B.
reported that the first time it happened when she was about ten years old, K.B.
indicated that appellant had continued to inappropriately touch her on subsequent
occasions. K.B. additionally disclosed to her that she had falsely recanted her story
after the first incident because her mother did not believe her. Ms. Halbrook
testified that over eighty-five percent of children will recant their statements when
there is a lack of maternal support and the abuse is by a male caretaker. Ms.
Halbrook further testified that of the eighty-five percent of children who recant,
about ninety-three percent of them will later reaffirm those allegations. Regarding
the video that was taken in Mr. Peek’s office, Ms. Halbrook testified that the
interview was not conducted under the protocols used by her office. She testified
that Mr. Peek used a lot of direct questions, forced multiple-choice answers, legal
jargon, and hypothetical questions, all of which she avoids. Ms. Halbrook testified
that after her interview, she opined that K.B.’s statement and body language were
consistent with sexual abuse. Videos of both interviews were played for the jury.
Ky.B. testified that she is K.B.’s older sister. According to Ky.B., when K.B. was
ten or eleven years old, K.B. told her about an incident in which appellant had come
into K.B.’s room one night and inappropriately touched K.B.’s “girl parts.” Ky.B.
testified that her sister was “hysterically crying, like bawling her eyes out” when
she told her about the incident.
D.H., K.B.’s friend, testified that in January or February 2016, she attended an
overnight church retreat with K.B. That night, K.B. told D.H., along with several
other girls in attendance, that appellant had inappropriately touched her when she
was approximately ten years old. D.H. described K.B. as emotionally weak,
hanging her head, and crying some while making the statement.
K.B. testified and described in detail two incidents in which appellant
inappropriately touched her. K.B. testified that on at least one occasion, appellant
digitally penetrated her vagina. K.B. admitted that she recanted her story after
telling her mother about one of the incidents and that she had lied during the video
that was recorded in Mr. Peek’s office. She explained that her mother did not
believe her story at that time and that she felt the counselor also did not believe her.
In 2016, after Ms. Green and appellant had divorced in 2015, K.B. attended a
church retreat. K.B. testified that she told her friends at the event that appellant had,
in fact, inappropriately touched her despite her prior statements to the contrary.
Afterward, she told Ms. Green and her biological father that she had not made up
the story about the incidents.
Appellant testified and denied the allegations. Appellant indicated that when K.B.
made the initial allegations, she was angry with her mother and wanted to live with
her biological father. He did not know why she realleged the allegations. Appellant
further denied that he had ever threatened suicide to Ms. Green.
Mr. Peek testified that he had interviewed K.B. after appellant and Ms. Green hired
him. At that time, K.B. had initially accused appellant of inappropriately touching
her and then recanted her story. Mr. Peek explained that it was not his duty to find
out the truth but to protect his client who paid him. Mr. Peek testified that he does
not necessarily model his interview on CAC’s protocols. However, he does try to
avoid leading questions on all material parts and felt that he did so during K.B.’s
interview.
Appellant finally offered two character witnesses on his behalf. Appellant’s
grandmother testified that appellant had never touched anyone inappropriately to
her knowledge or do anything that would cause her concern. Furthermore,
appellant’s pastor testified that he did not have any concerns about appellant being
around either of his children or his grandchildren.
After all evidence had been presented, including the videos from both interviews,
the jury found appellant guilty of rape and sexual assault in the second degree, and
appellant was sentenced to serve consecutively 300 months and 60 months in the
Arkansas Department of Correction, respectively.
Green v. State, 2020 Ark. App. 130, at 1–5 (2020).
B. Direct Appeal
On direct appeal, Petitioner did not contest the sufficiency of the evidence. Green v. State,
2018 Ark. App. 38, at 5 (2018). Petitioner instead argued that the trial court abused its discretion
in refusing to allow Tyler to question Halbrook about testimony in an unrelated rape case in which
the defendant was allegedly acquitted. The Arkansas Court of Appeals did not reach the issue
because Petitioner failed to proffer at trial evidence from which the Court of Appeals could make
a determination on the issue. Id. at 9.
C. Rule 37 Proceedings
Petitioner was represented in his Rule 37 proceedings by Mr. Jeff Rozenzweig, who also
represents Petitioner in this habeas action. In seeking Rule 37 relief, Petitioner made multiple
arguments: (1) the circuit court erred in refusing to hold that defense counsel had a conflict of
interest not remedied by a valid waiver; (2) counsel was ineffective by his failure to object to
inadmissible testimony from Melanie Halbrook of the Child Advocacy Center; (3) counsel was
ineffective by his failure to object to testimony of witnesses quoting the accuser and not seeking
an instruction that their testimony was not being admitted for the truth of the matter asserted;
(4) counsel was ineffective for failure to object to improper impeachment of a defense witness;
and (5) counsel was ineffective by failure to present or seek to present testimony concerning the
accuser’s source or inspiration to make the original claim of abuse.1
1. Petitioner’s Conflict of Interest Claim.
In the Rule 37 proceedings, Petitioner argued conflict of interest. As written in the Petition
for Relief Under Rule 37, “[t]he cause and prejudice test of Strickland v. Washington, 466 U.S.
668 (1984), is the test for ineffectiveness and adopted as the state test under Rule 37.” (Doc. No.
7-7 at 8). While Petitioner mentioned the Sixth and Fourteenth Amendments, his argument was
focused on violations of the Arkansas Rules of Professional Conduct. (Id. at 9-10). The Rule 37
Petition reads, in part:
[Petitioner] was represented by Joe Tyler of the law firm of Barrett and Tyler.
Tyler’s law partner, Craig (Shorty) Barrett, was in an extremely close personal
relationship with the elected prosecuting attorney, Stephanie Potter Black.
Had Barrett personally undertaken representation of Petitioner, this would have
violated Rule 1.7(a)(2) of the Arkansas Rules of Professional Conduct.
(a) Except as provided in paragraph (b), a lawyer shall not represent
a client if the representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if: (1) the
representation of one client will be directly adverse to another client;
or (2) there is a significant risk that the representation of one or more
clients will be materially limited by the lawyer's responsibilities to
another client, a former client or a third person or by a personal
interest of the lawyer[.]
The participation of Tyler without Barrett could not and did not cure the problem.
Rule 1.10(a) of the Arkansas Rules of Professional Conduct provides that:
1 In his Rule 37 Petition, Petitioner raised an argument in connection with the seating
arrangements and architecture of the courtroom. Because Petitioner did not bring that argument
in this habeas action (see Doc. No. 1), the Court will not consider this issue.
(a) While lawyers are associated in a firm, none of them shall
knowingly represent a client when any one of them practicing alone
would be prohibited from doing so by Rules 1.7, 1.9 or 3.7, unless
the prohibition is based on a personal interest of the prohibited
lawyer and does not present a significant risk of materially limiting
the representation of the client by the remaining lawyers in the firm.
Although the disqualification of Barrett involved a personal interest, waiver could
only be accomplished by “informed consent, confirmed in writing” as required by
Rule 1.7(b)(4). Furthermore, the relationship was sufficiently close that there was
a significant risk of materially limiting the representation. The risk indeed was
demonstrated by the egregious ineffectiveness described below.
Tyler orally disclosed to Petitioner that Barrett and Black were in a relationship that
would prohibit them from litigating against each other. Tyler did not obtain a
waiver on the conflict nor did he discuss the Rule 1.10 requirement. Also, he said
that Black would not personally prosecute the case, which turned out not to be true.
Moreover, considering the fact that Ms. Black was the elected prosecuting attorney,
she could have been walled off from the case.
This conflict violated Petitioner’s right to counsel under Sixth and Fourteenth
Amendments and Article 2 sec. 10 of the Arkansas Constitution. Petitioner also
here states that had he had this information, he would not have retained Tyler or his
firm.
(Id. at 9-10).
Judge David Laser held a hearing on the matter on November 19, 2018. (Id. at 124-236).
During the hearing, Tyler testified extensively as to the decisions he made in representing
Petitioner in the criminal proceedings, including at trial. Among other things, Tyler testified that
he did not see any conflict in his representation of Petitioner. (Id. at 134:18-22). Tyler said he
became aware that Ms. Black would participate at trial probably a month before the fact, and told
Petitioner of the development. (Doc. No. 7-7 at 135:2-136:6). Tyler had “gone against [Ms. Black]
before,” so to him this was no different. (Id. at 136:19-20). Tyler testified that he had prosecuted
“probably a hundred and fifty, two hundred” cases with Ms. Black representing the state when
Barrett and Ms. Black were either dating or married. (Id. at 137:14-17). During the course of the
representation, nothing “[came] up that made this relationship germane or affect the issues in
[Tyler’s] case with [Tyler’s] defendant client at all[.]” (Id. at 137:18-22). Tyler testified that he
“never felt either that [he] had a favorable or unfavorable edge as relates to [the relationship], just
like any other prosecutor.” (Id. at 138:2-5).
In denying Rule 37 relief, Judge Laser found that Tyler had no personal relationship with
Ms. Black. (Id. at 103). Judge Laser further found that Barrett’s conflict “did not impart to []
Tyler.” (Doc. No. 7-7 at 103). Judge Laser also noted Tyler’s testimony that he discussed with
Petitioner Tyler’s association with Barrett. (Id. at 103, 105). Judge Laser pointed out that
“[c]ontrary to the allegations in his Petition wherein he states he would not have retained Mr.
Tyler, neither the defendant nor his family sought representation elsewhere and continued to
employ Mr. Tyler as the attorney for the defendant.” (Id. at 105).
2. Failure to Object to Inadmissible Testimony From Melanie Halbrook
Petitioner argued that because the accuser had not yet testified at the time of Melanie
Halbrook’s testimony, a Child Advocacy Center interview with the accuser was “inadmissible as
a violation of rights of confrontation under the Sixth and Fourteenth Amendments and Article 2
Sec. 10 of the Arkansas Constitution and Crawford v. Washington, 541 U.S. 36 (2004).” (Id. at
11). Petitioner further argued that Tyler was ineffective in stipulating that Halbrook was an expert,
and in failing to object to improper profile evidence. (Id.).
Judge Laser determined Tyler’s treatment of Halbrook to be trial strategy. (Id. at 105-08).
3. Failure to Object to Testimony Without a Limiting Instruction
Petitioner explained that the prosecutor called two outcry witnesses. (Doc. No. 7-7 at 15).
Both witnesses testified before the accuser did, and claimed the accuser told them she had been
abused by Petitioner. (Id.). Petitioner argued that to the extent the statements were not offered
for the truth of the matter asserted, Tyler was ineffective for failing to obtain a limiting instruction.
Again, Judge Laser found Tyler’s treatment of the witnesses and their statements to be trial
strategy. (Id. at 109-110).
4. Failure to Object to Improper Impeachment of Defense Witness
Petitioner argued that Tyler was Ineffective for failing to object when the prosecuting
attorney impeached defense witness Peek. (Id. at 15). Peek took the recantation statement from
the accuser. The prosecuting attorney asserted that attorneys were mandated reporters, but that
Peek had not reported allegations of abuse. (Id.). Petitioner maintained that despite the
prosecutor’s statement having no basis in law, Tyler failed to object to the improper impeachment.
Judge Laser found relief unwarranted because there was no evidence any different outcome
would have been reached. (Id. at 111-112).
5. Failure to Present Testimony Concerning Accuser’s Source
Petitioner maintained Tyler was ineffective for notdelving into the origin or the accuser’s
claim of abuse. The accuser made her claim shortly after a contemporary had come to live with
the accuser; the contemporary had accused her stepfather of sexual abuse. (Doc. No. 7-7 at 16).
Tyler missed his opportunity to ask the accuser about the origin of her allegations, which,
according to Petitioner, was ineffective assistance. Judge Laser again found relief unwarranted
based on Tyler’s decision being trial strategy. (Id. at 113).
Judge Laser found none of Petitioner’s arguments warranted relief.
D. Appeal of Rule 37 Proceedings
On appeal, Petitioner pursued the same arguments listed above. The Court of Appeals,
applying the Strickland standard, affirmed the trial court’s decision.
With respect to the alleged conflict of interest, the Court of appeals, like Judge Laser, found
that no conflict existed. The Court of Appeals noted that the trial court heard Tyler’s testimony
and Petitioner’s arguments, but was not convinced of any conflict under Rule 1.10(a). Petitioner
v. State, 2020 Ark. App. 130, at 13. The Court considered Tyler’s testimony that “he did not feel
that his law partner’s relationship with Ms. Black gave him either a favorable or an unfavorable
edge.” Id. Tyler further testified that he did not think his partner’s “personal interest with Ms.
Black limited [Tyler’s] representation of [Petitioner] and Mr. Barrett was not involved in
appellant’s defense in any manner.” Id. The Court of Appeals found no clear error on this point.
The Court of Appeals concluded that Tyler’s arguments regarding Halbrook’s testimony
fell under trial strategy, and were not grounds for finding ineffective assistance of counsel. Id. at
15. Similarly, the Court of Appeals found Tyler’s failure to object to testimony quoting the accuser
or to seek a limiting instruction, and his failure to present testimony regarding the accuser’s source
or inspiration for her claims of abuse, were also issue of trial strategy.
Lastly, the Court of Appeals found that even if Tyler was deficient in failing to object to
the improper impeachment of Peek, Petitioner “could not show that there is a reasonable
probability that the fact-finder’s decision would have been different absent counsel’s error on such
a relatively minor point.” Id. at 19. The Court of Appeals affirmed on this point because Petitioner
could not show prejudice.
III. Petitioner’s Habeas Claims
Petitioner’s claims were decided by the state court on the merits. Under the Antiterrorism
and Effective Death Penalty Act of 1996, federal habeas courts are restricted to a “limited and
deferential review of underlying state court decisions.” Sera v. Norris, 400 F.3d 538, 542 (8th Cir.
2005); Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir. 2004). Federal courts are prohibited from
granting habeas relief on a claim that was adjudicated on the merits in state court, unless the
adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); see also Rompilla v. Beard, 545 U.S. 374, 380 (2005).
A state court decision is “contrary to” federal law if the state court arrives “at a conclusion
opposite to that reached by [the United States Supreme Court] on a question of law or if the state
court decides a case differently than [the United States Supreme] Court has on a set of materially
indistinguishable facts.” 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
A state court unreasonably applies federal law when the state court “identifies the correct
governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. A state court decision is
based on an “unreasonable determination of the facts” only if clear and convincing evidence shows
“that the state court’s presumptively correct factual findings do not enjoy support in the record.”
Lomholt v. Iowa, 327 F.3d 748, 752 (8th Cir. 2003); see also 28 U.S.C. § 2254(e)(1) (a state court’s
factual finding shall be presumed to be correct, and the applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence). When considering ineffective
assistance claims, courts must be cognizant that “the question is not whether counsel’s actions
were reasonable . . . [but] whether there is any reasonable disagreement that counsel satisfied
Strickland’s deferential standard.” Abernathy v. Hobbs, 748 F.3d 813, 817 (8th Cir. 2014).
Each issue Petitioner raised is addressed separately below.
A. Conflict of Interest
Petitioner argues ineffective assistance of counsel brought about by a conflict of interest.
When a Sixth Amendment right to counsel exists, “there is a correlative right to representation that
is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981). Petitioner focuses
his argument largely around purported violations of the Arkansas Rules of Professional Conduct.
“[B]reach of an ethical standard does not necessarily make out a denial of the Sixth
Amendment guarantee of assistance to counsel.” Nix v. Whiteside, 475 U.S. 157, 165 (1986).
Rather, ineffective assistance of counsel claims generally are analyzed under the Strickland
standard. Under Strickland, a petitioner must demonstrate that counsel’s performance was
deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington,
466 U.S. 668 (1984); Winfield v. Roper, 460 F.3d 1026, 1033, 1039 (8th Cir. 2006).
But when a petitioner alleges ineffective assistance based on conflict of interest, the less
demanding standards of Holloway v. Arkansas, 435 U.S. 475 (1978) and Cuyler v. Sullivan, 446
U.S. 335 (1980) may apply instead. Mickens v. Taylor, 535 U.S. 162, 168-69 (2002). Holloway
and Sullivan both involved a conflict of interest that arose from representation of multiple clients.
Multiple representation, however, is not at issue here. Neither the United States Supreme Court
nor the Court of Appeals for the Eighth Circuit have expressly extended the more lenient standards
available under Holloway and Cuyler to cases in which the conflict did not arise from multiple
representation. Williams v. Ludwick, 761 F.3d 841, 846 (8th Cir. 2014); U.S. v. Sharp, 879 F.3d
327, 333 (8th Cir. 2018).
In Williams v. Ludwick, the Court of Appeals for the Eighth Circuit assumed, without
deciding, that Cuyler applied to a conflict of interest not arising out of multiple representation.
761 F.3d at 846. The Court explained that to succeed under Cuyler, “‘a defendant must establish
that an actual conflict of interest adversely affected his lawyer’s performance.’” Id. (citing Cuyler,
446 U.S. at 350). “To prove a conflict produced an adverse effect [under Cuyler], a defendant
must identify a plausible alternative defense strategy or tactic that defense counsel might have
pursued, show that the alternate strategy was objectively reasonable under the facts of the case,
and establish that the defense counsel’s failure to pursue that strategy or tactic was linked to the
actual conflict.” Id. (citing Morelos v. United States, 709 F.3d 1246, 1252 (8th Cir. 2013)). In
contrast to Strickland, when “a defendant ... shows that a conflict of interest actually affected the
adequacy of his representation, [he] need not demonstrate prejudice in order to obtain relief.”
Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980). Ultimately, in Ludwick the Court of Appeals
affirmed the trial court’s denial of relief under both Strickland and Cuyler. Ludwick, 761 F.3d at
846-47. Here, as in Ludwick, Petitioner’s claims also fail under either standard.
Petitioner alleges that the circuit court erred in refusing to hold that defense counsel had a
conflict of interest not remedied by a valid waiver. Petitioner alleges Tyler’s actions violated his
Sixth Amendment rights, along with Rule 1.7(a)(2) of the Arkansas Rules of Professional Conduct.
(Doc. No. 1 at 6). Petitioner describes the conflict through the following example: “Tyler was in
the position of (i) not antagonizing the prosecutor and probably his law partner as well, or (ii)
propounding proper objections to the evidence in this case.” (Id. at 5).
During the Rule 37 hearing, Tyler testified that he had been with law firm of Barrett and
Tyler, LLP since 2008. (Doc. No. 7-7 at 130:6-11). Tyler further testified that his partner, Barrett,
was romantically involved with the elected prosecutor, Ms. Black. (Id. at 130:12-131:10). Tyler
discussed with Petitioner, his client, or his client’s family, that Barrett and Ms. Black were dating,
and that Tyler did not see that as a conflict. (Id. at 131:4-132:1). Tyler explained that Barrett “had
decided to refrain from . . . practicing criminal defense in [Ms. Black’s] circuit to avoid any
appearance of impropriety.” (Id. at 131:22-132:1).
In deciding to take Petitioner’s case, Tyler consulted Rules 1.71 and 1.10 of the Arkansas
Rules of Professional Conduct, but did not obtain a written waiver of conflict from Petitioner. (Id.
at 132:13-22). Tyler believed that, pursuant to Rule 1.10, if a conflict is a “personal conflict,” then
no waiver was needed. (Id. at 133:1-3). In the early stages of Petitioner’s criminal case, Tyler
told Petitioner that Tyler did not think Ms. Black would be participating in the case against
Petitioner. (Doc. No. 7-7 at 134:23-135:13.) Ms. Black, however, would participate, as Tyler
learned about a month before trial and disclosed to Petitioner. (Id. at 135:14-136:12).
When asked if Barrett’s personal romantic interest in Ms. Black caused Tyler any concern,
Tyler responded: “It didn’t cause me concern. I had gone against her before so I mean to me it
wasn’t any different.” (Id. at 136:13-20). Tyler also testified that during the time Barrett and Ms.
Black were either dating or married, Tyler worked as defense counsel in cases with Ms. Black in
one hundred and fifty to two hundred cases. (Id. at 137:11-17). Judge Laser inquired of Tyler
whether “[d]uring the course of that representation did at any time anything come up that made
this relationship germane or affect the issues in your case with your defendant client at all?” (Id.
at 137:18-21.) Tyler’s response was “[n]ot at all, Your Honor.” (Id. at 137:22). Judge Laser
continued his questioning: “Not anything that even brought you thinking about well there’s
something going on here because of this relationship?” (Doc. No. 7-7 at 137:23-25). Tyler
responded, “No, Your Honor.” (Id. at 138:1). Judge Laser persisted: “You never felt either that
you had a favorable or unfavorable edge as relates to that, just like any other prosecutor?” (Id. at
138:2-4). Tyler answered, “That’s correct, I never felt that way.” (Id. at 138:5).
In its written order denying Rule 37 relief, the trial court cited the Strickland standard (Id.
at 102-03). The court found Barrett clearly had a conflict, but the conflict did not impart to Tyler,
because Tyler had no personal interest that would create a conflict. (Id. at 104). As such, the
court wrote, no written waiver and consent was required. (Doc. No. 7-7 at 104). The court looked
to Tyler’s testimony that he discussed the Black-Barrett relationship with Petitioner and his family,
and pointed out that “neither the defendant nor his family sought representation elsewhere and
continued to employ Mr. Tyler as the attorney for the defendant. As a matter of fact, Mr. Tyler
testified that he and the defendant had a prior established professional relationship in that Mr. Tyler
had previously represented the defendant in a domestic relations matter as well as a misdemeanor
criminal matter. (Id. at 105). All things considered, the trial court found Tyler had no conflict of
interest. (Id. at 103-05).
The Arkansas Court of Appeals agreed. The Court of Appeals considered Rules 1.7 and
1.10 of the Arkansas Rules of Professional Conduct and Tyler’s testimony at the Rule 37 hearing,
and found no clear error in the trial court’s conclusion that Tyler had no conflict of interest under
Rule 1.10(a). Green v. State, 2020 Ark. App. at 12-13.
Here, Petitioner maintains that under Mickens v. Taylor and Cuyler v. Sullivan, Tyler had
an actual conflict of interest affecting the adequacy of representation because (1) Tyler had
conflicting loyalties; (2) Tyler had a significant risk that his representation of Petitioner would be
limited because Barrett and Tyler is a two-man operation where no “Chinese wall” could be
imposed; and (3) there was an appearance of impropriety that made Tyler’s representation of
Petitioner unlawful. (Doc. No. 1 at 4-8).
As set out above, the Arkansas Court of Appeals interpreted the Arkansas Rules of
Professional Conduct and found no conflict existed. It is not for this Court to review the Arkansas
Court of Appeals’ interpretation of the Arkansas Rules of Professional Conduct. See Middleton
v. Roper, 455 F.3d 838, 852 (8th Cir. 2006).
While Petitioner argues his claim under Mickens and Cuyler, neither case supports a grant
of relief in this case. Again, “[t]o prove a conflict produced an adverse effect [under Cuyler], a
defendant must identify a plausible alternative defense strategy or tactic that defense counsel might
have pursued, show that the alternate strategy was objectively reasonable under the facts of the
case, and establish that the defense counsel’s failure to pursue that strategy or tactic was linked to
the actual conflict.” Ludwick, 761 F.3d at 846.
In the pretrial proceedings held on February 27, 2017, Tyler brought a motion in limine as
to any State witness testifying as to their opinion as to truthfulness. (Doc. No. 7-2 at 52:12-53:6).
The Court agreed that “no one can testify that someone is definitely telling the truth or not telling
the truth.” (Id. at 53:3-6). Tyler also unsuccessfully sought to keep evidence of alleged crimes
pending against his client off the record. (Id. at 53:16-54:3). Further, Tyler argued that “[a]nything
the alleged victim told to them would certainly be hearsay unless it falls under an exception, so we
object to any potential outcry witnesses being called.” (Id. at 54:4-7). Counsel was instructed to
approach the bench before proceeding with questions that would involve responses including
potential hearsay. (Id. at 55:2-9). Tyler also contested the prosecution’s motion in limine. (Id.
at 55:19-59:10).
At trial, Tyler stipulated to a video of the victim’s CAC interview being introduced, along
with a video of the victim’s recantation. (Doc. No. 7-2 at 134:12-135:4). Tyler crossed examined
K.B.’s mother, drawing attention to the recantation as recorded in the video, as well as in a note
written by K.B.’s mother. (Id. at 159:9-160:7). Tyler also questioned K.B.’s mother about her
relationship with K.B., pointing out that she had more issues with K.B. over the years than with
the other children. (Id. at 160:17-22).
During Tyler’s cross examination of Halbrook, Tyler asked her numerous questions
attacking the statistics she cited during direct. (Id. at 203:25-206:14). For example:
Tyler: Now let me back up. Let’s say we have 85 percent that recant and then the
15 percent that don’t. So we have 100 percent, right?
Halbrook: Yes, sir.
Tyler: What percentage of those child sexual abuse victims have actually been
victimized?
Halbrook: Well, that is – it’s not my job to determine whether or not a child is telling
the truth and –
Tyler: If you don’t know, ma’am, you can simply say I don’t know.
Halbrook: I don’t know.
(Id. at 206:1-11).
Tyler also sought testimony as to Halbrook’s interviews with K.B.’s siblings; the defense
objected based on relevancy and then hearsay. (Id. at 206:15-209:11). Tyler attempted to impeach
Halbrook about her conclusion that K.B.’s mannerisms and demeanor were consistent with sexual
abuse by pointing out that another individual had been acquitted despite Halbrook’s testimony.
(Doc. No. 7-2 at 209:16-210:6). The prosecution objected, and the court sustained. (Id. at 210:1-
23).
When the defense presented its case, Tyler called Peek, the lawyer who recorded K.B.’s
recantation, asking him details about the video. (Id. at 306:10-310:25). Tyler made multiple
objections during the prosecution’s cross of Peek. (Id. at 313:12-13, 314:21-24, 315:24-316:2,
316:19-20).
Petitioner alleges Tyler was ineffective for failing to object to testimony offered by
Halbrook and K.B, failing to present testimony regarding K.B.’s source, and failing to object to
improper impeachment of a defense witness. Petitioner’s argument appears not so much to be
“an accusation that [Tyler] failed to pursue an alternative defense strategy, but that he did not
pursue [Petitioner’s] desired strategy,” as now presented in this habeas action, to Petitioner’s
satisfaction. United States v. DeCologero, 530 F.3d 36, 77 (1st Cir. 2008). Further, Petitioner did
not establish that any alleged failure to pursue an alternative strategy was linked to the alleged
conflict: the chance of “probably” antagonizing Tyler’s law partner is the type of division of
loyalties that the Supreme Court has said is not enough to establish an actual conflict. As such,
Petitioner has not established adverse impact under Cuyler—and he cannot prove prejudice under
Strickland’s more rigorous standard. Winfield v. Roper, 460 F.3d 1026, 1040 (8th Cir. 2006).
The Arkansas Court of Appeals’ opinion is not an unreasonable application of Strickland.
Even if Tyler’s representation was constitutionally deficient, Petitioner failed to establish
prejudice. Strickland, 466 U.S. at 687; Winfield v. Roper, 460 F.3d 1026, 1033 (8th Cir. 2006).
To show prejudice, a Petitioner must establish that there is a reasonable probability that but-for
counsel’s ineffectiveness, Petitioner would have achieved a more favorable result in the state court
proceedings. Id. at 690-91. By reasonable probability, the law means probability “sufficient to
undermine confidence in the outcome.” Wiggins v. Smith, 539 U.S. 510, 534 (2003). Such
probability is lacking here.
B. Halbrook Testimony
At the Rule 37 hearing, Tyler acknowledged that he did not file “any sort of Daubert motion
or any other challenge saying [he does not] think [Halbrook] is an expert.” (Doc. No. 7-7 at
139:22-130:2). Rather, Tyler stipulated to Halbrook’s expertise. (Id. at 140:3-4). Tyler went on
to testify that he had encountered Halbrook personally in his cases approximately four to five
times. (Id. at 140:11-22). Tyler also was familiar with Halbrook through other defense attorneys
and numerous trials, and Tyler had “never seen one time where [Halbrook] did not qualify as an
expert in forensic interviewing.” (Id. at 140:18-22). Tyler explained:
Your Honor, the last thing I wanted was for her to get up there and spout off her
qualifications for thirty minutes in front of that jury. So I wanted to skip that step
so we could get right to what she was going to testify to. I did not want to hear how
qualified she was because I knew she was going to be qualified as an expert.
(Id. at 141:1-7). Tyler had reviewed Halbrook’s CV or resume before determining not to object
to her qualifications. (Id. at 143:15-24). Tyler further explained that the trial judge had received
Halbrook as an expert on numerous occasions. (Doc. No. 7-7 at 141:8-13).
Petitioner argues not only that Tyler was ineffective for failing to challenge Halbrook
generally as an expert, but also for failing to object to testimony that arguably went beyond the
scope of a forensic interviewer—for example, that a child’s statement is consistent with a child
who has been sexually abused. (Id. at 144:1-146:19). But Tyler did attempt to impeach Halbrook
on this point. (Doc. No. 7-2 at 209:16-210:25).
Petitioner also challenged Tyler’s effectiveness for not objecting in connection with the
statistics Halbrook used at trial. Tyler testified at the Rule 37 hearing that he thought the statistics
were ridiculous. (Doc. No. 7-7 at 153:22-157:13). He explained that his
whole point with the statistics was [he] thought they were ridiculous. And that’s
why [he] went into that testimony about what are the statistics on children who have
actually been sexually abused because there is no way to know that. There is no
way to know who is telling the truth or not. That’s the point [he] was trying to get
across to the jury.
(Id. at 156:24-157:4). Tyler conceded that he did not ask Halbrook the source from which she
obtained her statistics. (Id. at 157:8-13).
As set out above, the trial court and Arkansas Court of Appeals found Tyler’s decisions
regarding Halbrook to be strategic. The record contains facts that support the Arkansas court’s
findings. Burt v. Titlow, 571 U.S. 12, 18-20 (2013). As Strickland expressed, this type of strategic
choice is “virtually unchallengeable.” Strickland, 466 U.S. at 690-91. Accordingly, due deference
is appropriate and Petitioner is not entitled to relief based on this claim.
C. Failure to Object to Outcry Witnesses and to Seek Limiting Instruction
Petitioner maintains Tyler was ineffective because he failed to object to the testimony of
prosecution witnesses Ky. B. and D.H. (Doc. No. 1 at 14-15). Each of the witnesses testified
before the victim did, and each claimed the victim expressed that she had been abused by
Petitioner. Petitioner asserts the testimony was not admissible as an excited utterance or prior
inconsistent statement. (Id. at 14-17). Petitioner further asserts that to the extent the testimony
was not offered for the truth of the matter presented, Tyler failed to seek a limiting instruction.
(Id. at 17).
At the Rule 37 hearing, Tyler testified that he believed the testimony to be an excited
utterance. (Doc. No. 7-7 at 210:24-211:20). The lower court and Arkansas Court of Appeals each
found Tyler’s decisions to be strategic. Green v. State, 2020 Ark. App. at 17-18. There is evidence
in the record to support this finding. As such, the finding of the Arkansas courts is entitled to
deference.
D. Failure to Object to Improper Impeachment of Defense Witness
According to Petitioner, Tyler was ineffective for not objecting when the prosecution cross
examined Peek and asserted that “attorneys were mandated reporters and thus that Peek had
violated the law by failing to report the allegations of abuse.” (Doc. No. 1 at 18).
Tyler testified at the Rule 37 hearing that he thought he had objected. The record proved
otherwise. The Arkansas Court of Appeals affirmed after the lower court found Tyler’s related
decisions to be trial strategy and not prejudicial. Green v. State, 2020 Ark. App. at 19.
This Court cannot say, based on the record before it, that the Arkansas courts’ finding of
fact or application of the law was unreasonable. Accordingly, the Arkansas Court of Appeals
decision is entitled to deference.
E. Failure to Present Testimony On Victim’s Source of Original Claim of Abuse
Petitioner points out that after the victim recanted her allegations of abuse, K.H. had come
to live with the victim and her family. (Doc. No. 1 at 19). K.H. also had accused her stepfather
(not Petitioner) of sexual abuse. Tyler did not ask the victim about it, but waited under Petitioner
testified to raise this issue. The trial court would not allow further testimony on the subject because
Tyler had not questioned the victim about it. Petitioner maintains he was deprived of a plausible
explanation about why the accusation against him was made, and that there is a reasonable
probability that the outcome of the case would have been different if this line of questioning had
been allowed. (Id. at 20).
Tyler testified during the Rule 37 hearing that after the judge told him that he should have
asked the victim about this point, Tyler decided not to attempt to call the victim back to the stand
to ask her about the origin of her renewed allegations. (Doc. No. 7-7 at 174:13-15).
The lower court found Tyler’s decision to be strategic, and the Arkansas Court of Appeals
agreed. Green v. State, 2020 Ark. App. at 19-21. There are facts in the record to support that
conclusion. Again, this Court cannot say, based on the record before it, that the Arkansas courts’
finding of fact or application of the law was unreasonable. Accordingly, the Arkansas Court of
Appeals decision is entitled to deference.
IV. CONCLUSION
IT IS, THEREFORE, RECOMMENDED that:
1. Petitioner’s § 2254 Petition for Writ of Habeas Corpus (Doc. No. 1) be
DISMISSED with prejudice.
2. A certificate of appealability not be issued.
DATED this day of June, 2022. :
JEROME T. KEARNE
UNITED STATES MAGISTRATE JUDGE
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