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Doby v. Norris

March 30, 2007

ALGERNON DOBY # 095824 PETITIONER
v.
LARRY NORRIS, DIRECTOR ARKANSAS DEPARTMENT OF CORRECTION RESPONDENT



ORDER

I. Background

Petitioner Algernon Doby pled guilty to first-degree murder, aggravated robbery, battery, and theft of property. He was sentenced to 300 months in prison for first-degree murder with a suspended sentence of 120 months, 480 months on the robbery charge, 240 months on the battery charge, and 240 months on the theft-of-property charge. The trial court ordered the sentence for first-degree murder to be served consecutively to the concurrent sentences Petitioner received for the robbery, battery, and theft-of-property charges.

Petitioner filed a timely petition for post-conviction relief under Arkansas Rule of Criminal Procedure 37.1 alleging several claims of ineffective assistance of counsel. After holding an evidentiary hearing, the trial court denied Petitioner's Rule 37 petition. The Supreme Court of Arkansas affirmed in an unpublished opinion. Doby v. State, No. 04-1282, 2005 WL 3075401 at *2 (Ark. Nov. 17, 2005).

In this habeas corpus action, Petitioner claims that he was denied his Sixth Amendment right to effective trial counsel because his lawyer: (1) failed to advise him that the sentences on his charges would not all run concurrent; (2) told him he would be eligible for parole in six-and-one-half years; and (3) told him that he would get credit for four years of jail time. Each of these grounds was raised in Petitioner's Rule 37 Petition to the state trial court and again in his appeal of the denial of the Rule 37 Petition to the Supreme Court of Arkansas.

II. Standard of Review

A. Limited Federal Review of Claims Adjudicated in State Court

"When a claim has been adjudicated on the merits in state court, habeas relief is warranted only if the state court proceeding resulted in (1) a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, or (2) a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Bucklew v. Luebbers, 436 F.3d 1010, 1015 (8th cir. 2006) (quoting 28 U.S.C. § 2254(d)(1) and (2)); see also Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 2462 (2005).

A state court decision is "contrary to" federal law if the state court "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495 (2000).

A decision is "an unreasonable application" of federal law "if the state court identifies the correct governing legal principle from [the United States Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413.

Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Siers v. Weber, 259 F.3d 969, 973 (8th Cir. 2001) (citing Williams, supra). See also, Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 4 (2003) (holding that where a state court's application of federal law is challenged, that application "must be shown to be not only erroneous but objectively unreasonable.") "In other words, it is not enough for us to conclude that, in our independent judgment, we would have applied federal law differently from the state court; the state court's application must have been objectively unreasonable." Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006) (citation omitted).

In addition, in a federal habeas proceeding, a state court's factual findings are entitled to a presumption of correctness, absent procedural error. Those findings may be set aside "only if they are not fairly supported by the record."

Simmons v. Luebbers, 299 F.3d 929, 942 (8th Cir. 2002) (quoting Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769 (1995) and Middleton v. ...


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