United States District Court Judge D.P. Marshall, Jr. of the Eastern District of Arkansas, granted in part Timothy Kemp’s request for an evidentiary hearing on the State’s procedural defenses. Kemp v. Hobbs, 2014 WL 4079020 (E.D. Ark. Aug. 14, 2014)
. Kemp’s claims of ineffective assistance of trial counsel related to his alleged mental illness, frontal lobe damage and childhood trauma were procedurally defaulted as a result of alleged ineffective assistance by state post-conviction counsel. Judge Marshall concluded that Kemp was entitled to an evidentiary hearing to determine whether trial counsel was ineffective at either the guilt or sentencing phase for failing to investigate and present the mental state and trauma evidence. “That decision will, under Trevino
, determine whether Kemp may present these arguments on the merits notwithstanding his failure to develop them in state court.” Put another way, unless Kemp establishes that he was prejudiced by post-conviction counsel’s failure to raise the claims, they will remain procedurally defaulted.