# McArty v. Turner

> District Court, W.D. Arkansas · July 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10632399

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** July 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632399. Public record. Not legal advice.