United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
JAMES R. MARSCHEWSKI, Chief Magistrate Judge.
Before the court is the Petitioner's Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to 28 U.S.C. §2254 (Doc. 1) filed May 8, 2014. The Defendant filed a Response (Doc. 26) on July 11, 2014. The Petitioner filed a Reply (ECF No. 14) on July 11, 2014 and the matter is ready for Report and Recommendation.
On November 4, 1999 the Petitioner was charged, by way of an Amended Felony Information, with Capital Murder, and Felony with a Firearm. (ECF No. 13-1). The Amended Information states that:
Defendant is hereby put on notice that the state request sentencing in this cause pursuant to Ark, Stat. §16-90-120, against the peace and dignity of the State of Arkansas. to wit: Any person convicted of an offense which is classified by the laws of this state as a felony who employed any firearm of any character as a means of committing the felony, may be I (sic) the discretion of the sentencing court, subjected to an additional period of confinement in the state penitentiary for a period not to exceed fifteen (15) years, against the peach and dignity of the State of Arkansas. (Id., p. 6-7).
On November 11, 1999, petitioner, David Earl Little, pled guilty and was convicted of first-degree murder, using a firearm in the commission of a felony, and residential burglary. Petitioner was sentenced to 20 years' imprisonment for the murder conviction, and 5 years imprisonment for burglary which were imposed concurrently. He was sentenced to 15 years for committing a felony with a firearm which was imposed consecutively for a total term of 35 years imprisonment. (ECF No. 13-1, p. 3). The judgment form indicated that the "total time to serve on all offenses listed above: 480 months". (Id.)
The Petitioner's attorney wrote to the Arkansas Department of Correction in January 2000 asking that "would you please have whoever rides herd over parole eligibility date to look into Mr. Little's situation and either write me a letter of give me a call so that I can satisfy Mr. Little that he is going to do something substantially less than 28 years and that my rough figuring of this deal of between 15 and 16-1/2 years with credit for the time he was in the Washington County Jail is at least in the ballpark." (Id., p. 7).
On September 19, 2006 the Petitioner filed a Petition for Declaratory Judgment/Petition for Writ of Mandamus (ECF No. 13-2) in the Circuit Court of Jefferson County. The Petition basically contends that the Arkansas Department of Corrections is not computing his parole eligibility date correctly because they are treating the Felon in Possession of a Firearm as an enhancement rather than a separate charge.
On November 3, 2006 the Circuit Court of Washington County issued an Amended Judgment which ran the Murder in the First Degree and the Felony with a Firearm consecutively and the Residential Burglary charge concurrently. It also noted that the total time on all offenses was 420 months.
On January 31, 2007 the Circuit Court of Jefferson County entered an Order dismissing the Petitioner's Petition for Declaratory Judgment and Petition for Writ of Mandamus. (ECF No. 13-4). In May 2008 the Petitioner's attorney wrote to the Petitioner and informed him that "According to Arkansas law, before you become eligible for parole you are required to serve 70% of the 20 year sentence you received for the offense of Murder in the First Degree. This amounts to a total of 14 years. Additionally, Arkansas law requires you to serve one-fourth (1/4) of the 15 years sentence you received for the charge of Felony with a Firearm. (ECF No. 2, p. 9).
Petitioner filed this petition for federal habeas relief on May 8, 2014, alleging that his plea was entered in violation of the Sixth Amendment of the United States Constitution in that his counsel was ineffective by failing to correctly advise him with regard to his parole eligibility for the I5-year enhanced sentence for committing a felony with a firearm. (ECF No. 2) Petitioner contends that he pled guilty based on the belief that he would only be required to serve one fourth of the 15-year sentence - or 3.75 additional years before becoming eligible for parole. In support of his claim of ineffective assistance of counsel, petitioner relies on the two letters from his attorney that are attached to his petition. (ECF No. 2, pp. 7-10)
The Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. 104-132, 110 Stat. 1214 (1996), established a one year statute of limitations for federal habeas corpus petitions brought by state ...