Harmon v. Payne

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

RODNEY DALE HARMON PETITIONER

ADC #170497

VS. No. 4:24-cv-00718-BRW-ERE

DEXTER PAYNE, Director,

Arkansas Division of Correction RESPONDENT

RECOMMENDED DISPOSITION

This Recommendation (“RD”) has been sent to United States District Judge

Billy Roy Wilson. You may file objections to all, or part, of this RD. Objections

should be specific, include the factual or legal basis for the objection, and must be

filed within fourteen days. If you do not file objections, you risk waiving the right

to appeal questions of fact and Judge Wilson can adopt this RD without

independently reviewing the record.

I. Introduction

Rodney Dale Harmon, an inmate at the Ouachita River Correctional Unit of

the Arkansas Division of Correction, filed, through counsel, a petition for habeas

corpus pursuant to 28 U.S.C. § 2254. Doc. 1. Mr. Harmon’s petition should be

dismissed with prejudice because the single claim he presents was adjudicated and

rejected on the merits in state court, and relitigation is precluded under 28 U.S.C. §

2254(d).1

II. Background

In September 2015, officers with the United States Drug Enforcement Agency

(“DEA”), the Faulkner County, Arkansas Sheriff’s Office, and the Twentieth

Judicial District Drug Task Force executed a search warrant for Mr. Harmon’s home.

Harmon v. State, 2020 Ark. 217, at 1 (2020). The officers found over six pounds of

methamphetamine, multiple firearms, ammunition, baggies, scales, and cash. Id.

Mr. Harmon was charged in the Faulkner County, Arkansas Circuit Court with

multiple drug and gun-related crimes. Id.

In January 2017, while the charges against Mr. Harmon were pending, the

lead prosecutor learned that an HBO film crew, making a documentary called Meth

Storm, was present during the September 2015 search of Mr. Harmon’s home. Id. at

2. The prosecutor notified defense counsel about the film crew’s presence but stated

that she did not have possession of any related footage. Id. The prosecutor gave

defense counsel contact information for a film crew member, the HBO legal

department, and DEA personnel who had possibly approved the presence of the film

crew. Id. at 2-3.

1 This provision establishes the deferential review applied by federal habeas courts when

reviewing claims resolved on the merits in state court. See infra discussion at Section III.

Mr. Harmon’s attorney requested and received a trial continuance for the

purpose of obtaining footage of the search, but he was unable to obtain the footage

from HBO. Id. at 2. Mr. Harmon then asked the trial court to compel production of

the footage. Doc. 4-2 at 163-164. The trial court declined to compel the state to

obtain the footage but ordered “whomever” possessed it to turn it over to Mr.

Harmon and his attorney. Doc. 4-2 at 169. That order produced no results.

On the first day of trial, the trial court: (1) denied Mr. Harmon’s motion to

continue trial until such time as the video was obtained; and (2) granted the State’s

motion in limine to prohibit mention of the film crew’s presence during the search.

Harmon v. State, 2020 Ark. 217, at 3. The jury convicted Mr. Harmon of trafficking

methamphetamine within 1,000 feet of a school-bus stop, simultaneous possession

of drugs and firearms, possession of drug paraphernalia, and maintaining a drug

premises within 1,000 feet of a school-bus stop. Mr. Harmon was sentenced to forty

years in prison. Id. at 3-4.

On direct appeal, the Arkansas Court of Appeals reversed Mr. Harmon’s drug

trafficking conviction based on the trial court’s use of a non-model jury instruction,

Harmon v. State, 2019 Ark. App. 572, 11 (2019), but the Arkansas Supreme Court

reversed that decision, reinstating all original convictions. Harmon v. State, 2020

Ark. 217, at 1 (2020).

Mr. Harmon filed a petition for postconviction relief under Arkansas Rule of

Criminal Procedure 37 asserting that: (1) the presence of the HBO film crew during

the search of his home violated his Fourth Amendment rights pursuant to Wilson v.

Layne, 526 U.S. 603 (1999); and (2) he received ineffective assistance of counsel

because his attorney failed to identify a Wilson violation and raise it as an

independent ground to suppress the evidence seized in the search of his home.2 Doc.

4-9 at 13-21.

The trial court denied the petition. Doc. 4-9 at 39-40. Mr. Harmon appealed.

On December 7, 2023, the Arkansas Supreme Court affirmed the denial of

postconviction relief, Harmon v. State, 678 S.W.3d 390, 392, 2023 Ark. 179, 2 (Ark.,

2023), and on January 25, 2024, it denied a rehearing and issued its mandate. Doc.

4-12.

On August 23, 2024, Mr. Harmon filed the § 2254 petition now before the

Court, raising a single claim: that his trial counsel rendered ineffective assistance

by failing to move for the suppression of evidence based on the HBO film crew’s

presence during the search of his home.

2 Mr. Harmon also argued that his trial attorney rendered ineffective assistance by failing

to subpoena HBO to obtain footage of the search. Doc. 4-9 at 17-19. The trial court rejected this

claim (Id. at 40-51), and Mr. Harmon did not pursue it in appealing the trial court’s denial of

postconviction relief. Doc. 4-10 at 3.

On September 19, 2024, Respondent filed a response (Doc. 4) asserting that

the Arkansas Supreme Court’s decision rejecting Mr. Harmon’s claim is entitled to

deference under 28 U.S.C. § 2254(d).

On October 31, 2024, Mr. Harmon filed a reply addressing Respondent’s

arguments for dismissal. Doc. 8.

III. Discussion

Mr. Harmon raises a single claim: His trial counsel was constitutionally

ineffective for failure to move for suppression of evidence based on the film crew’s

presence during the search of his home “despite being made aware of a flagrant

violation of the Fourth Amendment as construed by a unanimous . . . Supreme Court

in Wilson v. Layne, 526 U.S. 603 (1999).” Doc. 1 at 6. The Arkansas Supreme Court

rejected this claim on the merits on postconviction review.

Respondent argues that habeas relief is precluded under the deferential review

standard for state court decisions mandated by the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), codified at 28 U.S.C. § 2254(d). Section 2254(d) provides

that when a state prisoner’s federal claim has been adjudicated on the merits in state

court, a federal court “shall not” grant an application for habeas relief unless the state

courts’ 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; 3 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.”4 “The question under [the] AEDPA is thus not whether a federal court

believes the state court’s determination was incorrect, but whether that determination

was unreasonable–‘a substantially higher threshold’ for a prisoner to meet.” Shoop

v. Twyford, 142 S. Ct. 2037, 2043 (2022) (quoting Schriro v. Landrigan, 550 U.S.

465, 473 (2007)).

The Arkansas Supreme Court assessed Mr. Harmon’s ineffective assistance

claim according to the standard set forth in Strickland v. Washington, 466 U.S. 668

(1984), which required Mr. Harmon to show that: (1) counsel’s performance was

deficient; and (2) the deficient performance prejudiced his defense. Harmon v. State,

2023 Ark. 179, 4 (2023). “The standards created by Strickland and § 2254(d) are

both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”

Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted).

3 A state court decision is “contrary to” clearly established federal law if the state court

either “arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of

law” or “decides a case differently than [the Supreme Court] has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an

“unreasonable application” of Supreme Court precedent if it “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.” Id.

4 The state court’s factual findings are subject to a deferential standard of review and

presumed correct unless the petitioner can rebut those findings through “clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1); see also James v. Bowersox, 187 F.3d 866, 871 (8th Cir. 1999).

The Arkansas Supreme Court concluded that Mr. Harmon’s ineffective

assistance claim depended on an overly broad application of Wilson v. Layne, 526

U.S. 603 (1999) and that his trial attorney, who aggressively pursued suppression on

other grounds, did not render ineffective assistance by failing to raise a novel

argument. Harmon v. State, 2023 Ark. at 5 (citing Weaver v. State, 339 Ark. 97, 102

(1999)).

The Arkansas Supreme Court’s decision was entirely reasonable. In Wilson v.

Layne, 526 U.S. 603 (1999), homeowners sued for civil damages, claiming that

officers violated their Fourth Amendment rights by bringing a photographer and

reporter into their home to observe and record the execution of an arrest warrant.

Ultimately, the case reached the Supreme Court,5 which declared: “[I]t is a violation

of the Fourth Amendment for police to bring members of the media or other third

parties into a home during the execution of a warrant when the presence of the third

parties in the home was not in aid of the execution of the warrant.”6 Id. at 614.

5 In the proceedings below, the Fourth Circuit declined to decide whether officers violated

the Fourth Amendment by permitting media ride-alongs during the execution of a warrant but held

that given the uncertain state of law on the issue, the defendant officers were entitled to qualified

immunity. Wilson v. Layne, 141 F.3d 111 (4th Cir. 1998). Recognizing a circuit split on whether

media ride alongs infringe Fourth Amendment rights, the Supreme Court granted certiorari. Wilson

v. Layne, 526 U.S. 603, 618 (1999) (“Between the time of the events of this case and today’s

decision, a split among the Federal Circuits in fact developed on the question whether media ride-

alongs that enter homes subject the police to money damages.”).

6 The Wilson Court based its holding on the “overriding respect for the sanctity of the home

embedded in our traditions since the origins of the Republic” and the fact that the presence of

reporters at the home was unrelated to an objective of the authorized intrusion. Wilson v. Layne,

Pertinent to Mr. Harmon’s ineffective assistance claim, the Wilson Court

noted: “We have no occasion here to decide whether the exclusionary rule would

apply to any evidence discovered or developed by the media representatives.” Id. at

614 n.2. The Court thus left open whether evidence “discovered or developed by

media representatives” could be subject to suppression under the exclusionary rule.

Nothing in the Wilson ruling suggests that media presence alone would warrant the

suppression of evidence seized by law enforcement.

Mr. Harmon does not contend that the HBO film crew present during the

search of his home discovered or developed evidence, and he acknowledges that “the

filmmakers were not acting in aid of the search, but rather were there for commercial

purposes.” Doc. 1 at 21. Instead, he faults his attorney for failing to move for the

suppression of evidence that would have been seized by law enforcement with or

without the film crew present.

The exclusionary rule deters police misconduct by preventing the use of

evidence gained because of such conduct. Hudson v. Michigan, 547 U.S. 586, 592

(2006) (explaining that a condition of applying the exclusionary rule is that a

constitutional violation was a “but-for” cause of obtaining evidence). In this case,

526 U.S. 603, 610-613 (1999). However, because the state of the law was not clearly established

at the time of the search in Wilson, the Supreme Court held that the defendant officers in that case

were entitled to qualified immunity.

the film crew’s presence may have infringed Mr. Harmon’s Fourth Amendment

rights, but it did not render the evidence seized a product of unlawful police conduct.

Illinois v. Gates, 462 U.S. 213, 223 (1983) (citations omitted) (“The question

whether the exclusionary rule’s remedy is appropriate in a particular context has long

been regarded as an issue separate from the question whether the Fourth Amendment

rights of the party seeking to invoke the rule were violated by police conduct.”).

Especially given the lack of any connection between the discovery and seizure of

inculpatory evidence and the HBO film crew’s presence during the search, the

Arkansas Supreme Court reasonably rejected Mr. Harmon’s ineffective assistance

claim, and the decision is entitled to deference under § 2254(d).

IV. Conclusion

IT IS THEREFORE RECOMMENDED that:

1. Petitioner Rodney Dale Harmon’s § 2254 Petition for Writ of Habeas

Corpus (Doc. 1) be DISMISSED with prejudice.

2. A Certificate of Appealability be DENIED. See 28 U.S.C. § 2253(c)(2);

Rule 11(a), Rules Governing § 2254 Cases in United States District Courts.

Dated 7 January 2025.

Aff □□□

UNITED STATES MAGISTRATE JUDGE