Nutt v. Payne

Opinion

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

JERRY NUTT ADC #098540 PETITIONER

v. No. 5:19-cv-164-DPM

DEXTER PAYNE, Director, Arkansas Division of Correction RESPONDENT

ORDER On de novo review, the Court adopts Magistrate Judge Deere’s recommendation, Doc. 22, as modified and overrules Nutt’s objections, Doc. 23. The modification: Because the Arkansas Court of Appeals found no deficient performance, it didn’t address prejudice. Nutt v. State, 2020 Ark. App. 137, *7, 594 S.W.3d 907, 912. Any analysis of that issue by this Court would therefore have to be de novo, not deferential. Rompilla v. Beard, 545 U.S. 374, 390 (2005). This Court need not address prejudice, though, because the state court’s handling of the deficient performance issue didn’t amount to an unreasonable application of federal law or an unreasonable determination of the facts in the record. 28 U.S.C. § 2254(d). Nutt’s petition will be dismissed with prejudice. No certificate of appealability will issue. 28 U.S.C. § 2253(c)(1)-(2).

So Ordered.

D.P. Marshall Jr. United States District Judge Al we 563. |