McArty v. Turner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

RANDALL THOMAS McARTY PLAINTIFF

v. Civil No. 6:20-CV-06071-SOH-MEF

DAN TURNER, Prosecuting Attorney, DEFENDANTS

Clark County, Arkansas; and

LESLIE RUTLEDGE,

Arkansas Attorney General

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed under 42 U.S.C. § 1983. Pursuant to the provisions of 28

U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief United States District Judge,

referred this case to the undersigned for the purpose of making a Report and Recommendation.

Currently before the Court are Defendants’ Motion to Dismiss (ECF No. 30) and Plaintiff’s

Motion for Evidentiary Hearing, Motion for Counsel, and Motion for Expert Witness (ECF Nos.

41, 43, 44).

I. BACKGROUND

Plaintiff is currently incarcerated in the Arkansas Division of Correction (“ADC”) Varner

Unit. (ECF No. 28 at 1-2). Plaintiff filed his Complaint on July 2, 2020. (ECF No. 1). He filed

a Motion to Amend on July 23, 2021 (ECF No. 9), which was granted on December 9, 2021 (ECF

No. 13). Plaintiff’s Amended Complaint was filed that same day. (ECF No. 14).

On January 11, 2022, Defendants filed a Motion to Dismiss. (ECF No. 24). On January

13, 2022, the Court entered an Order directing Plaintiff to submit either a Response to the motion

or a Second Amended Complaint. (ECF No. 26). Plaintiff filed a Second Amended Complaint on

January 31, 2022. (ECF No. 28).

Plaintiff challenges the constitutionality of Act 1780,1 the Arkansas Post-Conviction DNA

statute, “as construed and applied to me by the Defendants and the Arkansas Courts.” (ECF No.

28 at 7). Plaintiff clarifies that he “is not challenging the adverse decisions of the Arkansas

Courts.” (Id.). He also asserts that the Rooker-Feldman doctrine does not apply in this

circumstance.2 (Id.). He argues that Defendants have construed the statute in such a way as to

deny him the opportunity to have DNA testing performed on a knife that was a key piece of

evidence in his murder trial and conviction. (Id. at 7). He argues that this construction of the

statute was a violation of his Fourteenth Amendment due process rights. (Id. at 4). He also argues

he was denied the right to establish that “identity was at issue,” and denied the right to address the

rebuttable presumption against timeliness under the Act. (Id. at 4, 7).

Plaintiff proceeds against Defendants in their official and personal capacities. (Id. at 5).

He seeks injunctive and declaratory relief. (Id. at 11). More specifically, he asks the Court to

enjoin the enforcement of Act 1780 “as its being construed, interpreted, and applied to me by the

Defendant and the Arkansas courts”; for a declaratory judgment by the Court concerning the rights

of the parties; and for an Order that DNA testing be performed “on the knife and on other evidence

secured/seized at the crime scene.” (Id.).

As the details of Plaintiff’s conviction were not clear from Plaintiff’s allegations in this

case, the Court reviewed Plaintiff’s state criminal history. After a jury trial in Clark County,

Arkansas, Plaintiff was convicted of first-degree murder on June 23, 1993, in State v. McArty,

Case No. 10CR-92-111.3 He was sentenced to life imprisonment. Plaintiff appealed the

1 Act 1780 of the 2001 Acts of Arkansas, as amended by Act 2250 or the 2005 Acts of Arkansas, was codified as

Arkansas Code Annotated §§ 16-112-201 to 208 of the Arkansas Code in 2005.

2 To the extent Plaintiff argues that the state supreme court wrongly decided his case on issues unique to him and seeks

to have this Court overturn the state decision, that claim is barred by the Rooker-Feldman doctrine. See Johnson v.

Rutledge, Case No. 4:21-cv-00373-KGB, 2022 WL 990277 at *9 (E.D. Ark., March 31, 2022).

3 Available at Arkansas Court Connect (last accessed July 11, 2022).

conviction, which was upheld by the Arkansas Supreme Court on February 21, 1994, in McArty v.

State of Arkansas, 316 Ark. 35, 871 S.W.2d 346 (1994). On February 28, 2018,4 Plaintiff filed a

post-conviction petition in the Clark County circuit court for scientific testing for habeas relief

under Act 1780,5 in State v. McArty, Case No. 10CR-92-111.6 The state circuit court denied this

petition on August 20, 2018, finding that the petition was untimely and presented no cognizable

claims that present scientific testing would be more probative than that which was available at the

time of his trial.7 Plaintiff filed a motion for reconsideration on August 30, 2018, raising several

arguments, including that the time limit contained in Act 1780 violated the Arkansas Constitution.8

The state circuit court denied the motion for reconsideration on October 3, 2018, finding that

McArty had “failed to offer any argument(s) or evidence sufficient to require” either

reconsideration or reversal.9

Plaintiff appealed the denial of his petition to the state supreme court, which provided a

succinct summary of the facts in Plaintiff’s criminal case:

McArty and [Teresa] Chamberlain shared a home, and they were arguing when

McArty shot Chamberlain. McArty called the sheriff from a neighbor’s house, and

when an officer asked him what had happened, he said that he had shot

Chamberlain. Daniel Blasingame, who was staying at McArty’s home, heard

Chamberlain call out before the shot, and when he entered the kitchen, he saw her

body on the floor and McArty with the gun. McArty’s defense at trial concerned

his intent, and he testified that he shot Chamberlain in self-defense when she

attacked him with a knife. There was evidence of a knife found in Chamberlain’s

hand, but Blasingame testified that he did not see it, and under the State’s theory of

the case, McArty had placed the knife in Chamberlain’s hand after the fact.

4 In the years between 1995 and 2018, Plaintiff also filed several other actions for relief from his conviction and

sentence, including two federal habeas cases in the Eastern District of Arkansas and two federal habeas cases in this

District. They will not be addressed.

5 Plaintiff later filed a Petition to Correct an Illegal Sentence on October 6, 2021. This petition was also denied by the

circuit court. Plaintiff appealed both petitions to the state supreme court in the same appeal, and both denials were

affirmed.

6 Arkansas Court Connect, supra, note 3.

7 Id.

8 Id.

9 Id.

McArty v. State, 2020 Ark. 68, at 2, 594 S.W.2d at 56.

On February 20, 2020, the Arkansas Supreme Court upheld the denial of Plaintiff’s Act

1780 petition. Because Plaintiff argued at trial that he shot Chamberlain in self-defense, the court

held that he had not met one of the predicate requirements of the Act. Specifically, the court

reasoned that:

the Act does not provide relief when the identity of the perpetrator was not at issue

during the investigation and prosecution of the offense being challenged. McArty

contends that the identity of the person who grabbed the knife was in question, but

that issue was not one concerning the identity of the person who committed the

offense reflected in the judgment that McArty would challenge, and he cannot

satisfy the predicate requirements of the Act. Ark. Code Ann. § 16-112-202(7).

Id. at 5, 594 S.W.2d at 57-58. Because he failed to meet this requirement, the court held it was

“not necessary to examine McArty’s arguments concerning the circuit court’s ruling on

timeliness.” Id. at 5, 594 S.W.2d at 58. Justice Hart dissented, citing City of Fort Smith v. Wade,

2019 Ark. 222, 578 S.W.3d 276, for the premise that Act 1780 was remedial legislation that must

be liberally construed to accomplish its purpose. She would have remanded for further

proceedings because “[i]f McArty’s proposed testing revealed that the knife was, in fact, in the

victim’s hand when McArty shot her, that would significantly advance his claim of actual

innocence, i.e., that he shot the victim in self-defense.” McArty v. State, 2020 Ark. 68, at 9, 594

S.W.2d at 59-60.

Defendants filed their second Motion to Dismiss and brief on February 14, 2022. (ECF

Nos. 30, 31). They argue Plaintiff’s case should be dismissed because: (1) Plaintiff’s lawsuit is

time-barred by the applicable three-year statute of limitations in a section § 1983 action; (2) the

doctrine of res judicata bars Plaintiff’s lawsuit; and (3), Plaintiff has not alleged sufficient facts to

state a procedural due process claim, and the case should be dismissed pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure. (ECF No. 31 at 2).

Plaintiff filed his Response and brief on February 28, 2022. (ECF Nos. 34, 35). He argues

his case is not time-barred because he filed this case within five months of the state supreme court’s

opinion denying his petition for relief under Act 1780. (ECF No. 35 at 5). He also argues the

doctrine of res judicata is not applicable because he sued the State of Arkansas in his state petition,

and he is suing Defendants Turner and Rutledge in this action. (Id. at 7). Finally, he argues he

has stated sufficient facts to support a Fourteenth Amendment Due Process claim. (Id. at 8).

II. LEGAL STANDARD

Rule 8(a) contains the general pleading rules and requires a complaint to present “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). “In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), ‘a

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.’” Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. While the Court will

liberally construe a pro se plaintiff’s complaint, the plaintiff must allege sufficient facts to support

his claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).

III. ANALYSIS

A. Plaintiff’s § 1983 Complaint is Time-Barred

Prior to March 7, 2011, it was unsettled as to whether § 1983 claims for post-conviction

DNA testing were permissible, or if they were barred by Heck v. Humphrey, 512 U.S. 477 (1994).

See Skinner v. Switzer, 562 U.S. 521, 524 (2011) (comparing cases permitting: McKithen v. Brown,

481 F.3d 89, 99 (2d Cir. 2007); Savory v. Lyons, 469 F.3d 667, 669 (7th Cir. 2006); and Bradley

v. Pryor, 305 F.3d 1287, 1290-1291 (11th Cir. 2002), with cases denying: Harvey v. Horan, 278

F.3d 370, 375 (4th Cir. 2002) and Kutzner v. Montgomery County, 303 F.3d 339, 341 (5th Cir.

2002) (per curiam). On March 7, 2011, the Supreme Court held a request for post-conviction DNA

testing was not barred by Heck, because “[s]uccess in [the] suit for DNA testing would not

‘necessarily imply’ the invalidity of [the] conviction.” Id. at 534.

In Arkansas, the statute of limitations for a § 1983 claim is the state statute of limitations

for personal injury actions. Morton v. City of Little Rock, 934 F. 2d 180, 183 (1991) (citing Wilson

v. Garcia, 471 U.S. 261 (1985). This period is three years. Id. (referencing Ark. Code Ann. § 16-

56-105). Any possible equitable tolling is also controlled by state law unless that law is

inconsistent with the policies behind § 1983. Board of Regents of University of State of N.Y. v.

Tomanio, 446 U.S. 478 (1980); Hughes v. Sheriff of Fall River County Jail, 814 F.2d 532 (8th Cir.

1987).

The accrual date of a § 1983 cause of action is controlled by federal law. Wallace v. Kato,

549 U.S. 384 (2007). Accrual generally occurs when the Plaintiff has “a complete and present

cause of action.” Id. at 388. This is met when “the Plaintiff can file suit and obtain relief.” Id.

It was not clear that Plaintiff could file a § 1983 suit for post-conviction DNA testing until

March 7, 2011. This, therefore, is the accrual date when the three-year statute of limitations began

to run for this case. Noble v. Delay, Case No. 2:14-CV-02164-PKH-MEF, 2015 WL 5775887, at

*3 (W.D. Ark. July 27, 2015), report and recommendation adopted, 2:14-CV-02164, 2015 WL

5836989 (W.D. Ark. Oct. 2, 2015), aff'd, 667 F. App’x. 577 (8th Cir. 2016) (unpublished); Scott

v. Long, Case No. 2:11CV00116 SWW-BD, 2011 WL 6837504, at *4 (E.D. Ark. Dec. 13, 2011),

report and recommendation adopted, 2:11CV00116 SWW-BD, 2011 WL 6837503 (E.D. Ark.

Dec. 29, 2011) (Both cases holding that the § 1983 accrual date for post-conviction DNA testing

claims in convictions finalized more than three years prior to Skinner was March 7, 2011.)

Thus, Plaintiff needed to file his claim by March 7, 2014. He did not file this case until

July 2, 2020, long past his statutory deadline to do so. Plaintiff argues that he filed this case within

five months after the Arkansas Supreme Court denied his Act 1780 petition. Arkansas law,

however, does not provide for tolling of the statute of limitations while an inmate pursues state or

other remedies. See Ark. Code. Ann. § 16-56-126 (tolling permitted for nonsuit or judgment in

favor arrested or reversed); § 16-56-116 (tolling provided for individuals who are minors or insane

at the time of accrual); § 16-56-120 (tolling provided for improper acts of a party which prevent

commencement of action); § 16-56-121 (tolling provided for absconding debtors); § 16-56-125

(tolling provided for unknown tortfeasors). The failure to provide tolling during the pendency of

related but independent state actions does not render the state’s tolling rules inconsistent with §

1983. Board of Regents of University of State of N.Y. v. Tomanio, 446 U.S. at 478.

In his Second Amended Complaint, Plaintiff also argues that the type of DNA testing he is

requesting (Y-STR and Mini-STR)10 was not available in Arkansas until 2012. (ECF No. 28 at 6).

Even if so, his § 1983 filing was still untimely. Taking his allegation as true, and setting that

availability for the last day of 2012, Plaintiff’s deadline to file his § 1983 claim would have been

December 31, 2015. He filed long past this deadline as well.

Plaintiff’s § 1983 claim for post-conviction DNA testing is time-barred, and dismissal of

his claim is appropriate.

10 Plaintiff does not state how these tests would be more probative than DNA tests available earlier.

B. Even if Not Time-Barred, the Denial of Plaintiff’s Post-Conviction DNA Testing

Petition Does Not Raise Procedural Due Process Concerns

Plaintiff’s post-conviction DNA testing petition was denied by Arkansas courts because he

failed to meet several Act 1780 threshold requirements. The state circuit court denied his request

because he had not filed it within three years after his conviction as required by Ark. Code. Ann.

§ 16-112-202(10)(B), and because he had not presented any cognizable claim that any new method

of testing would be more probative than prior testing as required by Ark. Code. Ann. § 16-112-

202(10(B)(iv). The state supreme court denied his request because the identity of the perpetrator

was not at issue during either the investigation or the prosecution of the offense being challenged

as required by Ark. Code Ann. § 16-112-202(7). As such, the state supreme court held it was not

necessary to address the threshold requirements relied upon by the circuit court. Plaintiff now

presents a facial challenge to the timeliness and identity-at-issue requirements of Act 1780. The

question before this Court is whether these two threshold requirements violated Plaintiff’s

Fourteenth Amendment due process rights.

There is no “freestanding, substantive due process right to DNA evidence.” District

Attorney’s Office for Third Judicial District v. Osborne, 557 U.S. 52, 53. (2009). Therefore,

Plaintiff’s rights to post-conviction DNA testing arise from Act 1780. Once convicted, a criminal

defendant has only a “limited [liberty] interest in postconviction relief.” Osborne, 557 U.S. at 69.

“Federal courts may upset a State’s postconviction relief procedures only if they are fundamentally

inadequate to vindicate the substantive rights provided.” Id. Instead, the Supreme Court

emphasized that the task of balancing “DNA's power to prove innocence without unnecessarily

overthrowing the established system of criminal justice” is a task that belongs primarily to state

legislatures. Id. at 62. Concerns for “important state interests” such as “respect for the finality of

court judgments and the efficient use of limited state resources,” have resulted in the

implementation of various state statutory threshold requirements that an applicant must meet

before a request for post-conviction DNA testing will be granted. Deborah F. Buckman, Validity,

Construction, and Application of State Statutes and Rules Governing Requests for Postconviction

DNA Testing, 72 A.L.R. 6th 227, § 2 (Westlaw through July 14, 2022).

In the Skinner decision in 2011, the Supreme Court stated that “Osborne severely limits

the federal action a state prisoner may bring for DNA testing. Osborne rejected the extension of

substantive due process to this area, and left slim room for the prisoner to show that the governing

state law denies him procedural due process.” Skinner, 562 U.S. at 525 (internal citations omitted).

In 2019, the Eleventh Circuit observed that the Supreme Court “has made it clear that a prisoner

will seldom be able to meet the Osborne test,” and “those of us on the lower courts have paid

attention.” Cromartie v. Shealy, 941 F.3d 1244, 1252 (11th Cir. 2019). “Every [federal] court of

appeals to have applied the Osborne test to a state’s procedure for postconviction DNA testing has

upheld the constitutionality of it.” Id. (Collecting cases from the First, Second, Ninth, and Eleventh

Circuits). The Eighth Circuit has not yet addressed the constitutionality of Act 1780 on the merits

in a § 1983 case. This Court must, therefore, evaluate Plaintiff’s claims in the light of the Osborne

decision.

In Osborne, the Supreme Court reviewed the constitutionality of the Alaska post-

conviction DNA process. At the time of review, Alaska did not yet have a DNA-specific post-

conviction relief statute. Instead, the state utilized a combination of the general post-conviction

relief statute, Alaska Stat. § 12.72, and a three-part DNA-specific test invoked by the state court

of appeals.11 The statute provided a substantive right to be released on “a sufficiently compelling

11 Alaska subsequently passed a post-conviction DNA statute, Alaska Stat. § 12.73, in 2010.

claim that establishes innocence,” and exempted such claims from otherwise applicable time

limits. Id. at 70. The statute also required that the evidence “must be newly available ..., must

have been diligently pursued, and must also be sufficiently material.” Id. The time limit to bring

a post-conviction claim under the statute is 18 months either after a conviction or after newly

discovered evidence if due diligence is established. Alaska Stat. § 12.72.020(a)(3(A) and

(b)(2)(A)(i).

The common law three-part test invoked by the state court of appeals required that a

defendant requesting post-conviction DNA testing must show: “(1) that the conviction rested

primarily on eyewitness identification evidence, (2) that there was a demonstrable doubt

concerning the defendant's identification as the perpetrator, and (3) that scientific testing would

likely be conclusive on this issue.” Osborne, 557 U.S. at 65 (quoting Osborne v. State, 110 P.3d

986, 995 (2005)). The Osborne Court found “nothing inadequate about the procedures Alaska had

provided to vindicate its state right to postconviction relief in general, and nothing inadequate

about how those procedures apply to those who seek access to DNA evidence.” Id. at 69.

In reaching this conclusion, the Osborne Court referenced the Innocence Protection Act of

2004, § 411, 118 Stat. 2278, codified in part at 18 U.S.C. § 3600, which allows federal prisoners

to move for court-ordered DNA testing under certain specified conditions. The Supreme Court

noted this federal statute had served as a model for some state legislation, and approved of the

federal statute, calling it “a model for how states ought to handle the issue.” Osborne, 557 U.S.

at 63; Cromartie, 941 F.3d at 1255 (the Osborne Court approved of the federal statute as a model

for the states); Alvarez v. Atty. Gen. for Fla., 679 F.3d 1257, 1266 (11th Cir. 2012) (Supreme Court

in Osborne endorsed both Alaska § 12.72 and 18 U.S.C. 3600). Section 3600(a)(7) requires the

identity of the perpetrator to be at issue if convicted following a trial. Section 3600(a)(10) provides

a rebuttable presumption of timeliness if the application is made within 36 months of conviction,

and a rebuttable presumption of untimeliness if it is not.

This brings us to the Arkansas Act 1780 threshold requirements for comparison. Ark. Code

Ann. § 16-112-202(7) requires that “[t]he identity of the perpetrator was at issue during the

investigation or prosecution of the offense being challenged.” Ark. Code. Ann. § 16-112-

202(10)(B) states “[t]here shall be a rebuttable presumption against timeliness for any motion not

made within thirty-six (36) months of the date of conviction.” This presumption of untimeliness

may be rebutted in several circumstances. The Arkansas timeliness requirement is more generous

than the 18 months in the Alaska statute and identical to 36 months of the federal statute. The

Arkansas identity-at-issue requirement is also essentially identical to the identity-at-issue

requirements in the Alaska common law three-part test and in the federal statute. As both the

Alaska and federal post-conviction threshold requirements of timeliness and identity-at-issue have

been found to be facially constitutional by the United States Supreme Court, nothing in the

Arkansas threshold requirements at issue in this case raise any constitutional concerns.

The Court notes that identity-at-issue requirements are one of the most common and basic

threshold requirements in post-conviction DNA statutes nationwide. Buckman, supra, § 2.

Additionally, at least two other federal District courts have upheld identity-at-issue threshold

requirements in self-defense cases in under § 1983. See Kellum v. Putnam, 6:21CV125, 2021 WL

3745738, at *3 (E.D. Tex. June 23, 2021); Roughley v. Watkins, 3:14-CV-2637-N-BK, 2014 WL

5313957, at *3 (N.D. Tex. Sept. 22, 2014), report and recommendation adopted, 3:14-CV-02637-

N-BK, 2014 WL 5313952 (N.D. Tex. Oct. 17, 2014).

Nor does it appear that Plaintiff was denied any procedural due process in the application

of Act 1780. Plaintiff makes no factual allegation as to how he was denied due process, stating

only that his requests were denied. He applied for relief under the Act and was denied based on

facially valid threshold requirements by both the state circuit court and the state supreme court.

Those denials, alone, do not require a finding that his Fourteenth Amendment procedural due

process rights were violated.

Plaintiff has failed to state a plausible procedural due process violation claim under § 1983,

and dismissal of this case is appropriate.

IV. CONCLUSION

For the reasons discussed above, it is recommended that Defendants’ Motion to Dismiss

(ECF No. 30) be GRANTED and Plaintiff’s Second Amended Complaint (ECF No. 28) be

DISMISSED WITHOUT PREJUDICE. It is further recommended that Plaintiff’s Motion for

Evidentiary Hearing, Motion for Counsel, and Motion for Expert Witness (ECF Nos. 41, 43, 44)

be DENIED as MOOT.

The parties have fourteen (14) days from receipt of the Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court.

DATED this 22nd day of July 2022.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE