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Russell v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

March 9, 2015

ROY LEE RUSSELL, Petitioner,
v.
WENDY KELLEY, Director, Arkansas Department of Correction (ADC), Respondent.

PROPOSED FINDINGS AND RECOMMENDATION

H. DAVID YOUNG, Magistrate Judge.

INSTRUCTIONS

The following recommended disposition has been sent to United States District Court Judge D.P. Marshall Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.

From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

Mail your objections and AStatement of Necessity@ to:

DISPOSITION

In 2012, Roy Lee Russell was tried by a Desha County jury on the charges of three counts of kidnapping, one count of aggravated assault, three counts of rape, one count of second-degree battery, and one count of being a felon in possession of a firearm. Mr. Russell was acquitted of all charges except second degree battery and being a felon in possession of a firearm. He was sentenced as an habitual offender to fifteen years for second degree battery, and to forty years for being a felon in possession of a firearm. The sentences were ordered to be served consecutively. On direct appeal Mr. Russell challenged the sufficiency of the evidence, specifically arguing that the evidence of second degree battery and felon in possession was insufficient in light of the jury's acquittal on the charge of aggravated assault. The Arkansas Court of Appeals affirmed the convictions. Russell v. State, 2014 Ark.App. 357. Mr. Russell filed a timely Rule 37 petition with the trial court in September of 2014, alleging eight grounds of ineffective assistance of trial counsel. One week after the Rule 37 petition was filed the trial court summarily dismissed the petition for lack of jurisdiction. Mr. Russell appealed this ruling, and the Supreme Court of Arkansas, noting the lack of an explanation for the trial court's decision, reversed and remanded the case for further proceedings. The Supreme Court of Arkansas rendered its decision on December 11, 2014, and the Rule 37 petition is currently pending in the Desha County Circuit Court. The current federal habeas corpus petition, filed on January 5, 2015, advances the claim raised on direct appeal and the eight claims of ineffective assistance of counsel raised in the pending Rule 37 petition.

The respondent urges that the petition should be dismissed without prejudice because it is a "mixed petition" - that is, the petition contains a claim (insufficiency of the evidence) which was exhausted and claims (the eight claims of ineffective assistance of counsel) which are not yet exhausted in state court.

Prior to the enactment of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, it was clear that mixed petitions were to be dismissed by federal courts and petitioners were required to return to state court and totally exhaust their claims before returning to federal court. See Rose v. Lundy, 455 U.S. 509 (1982). The AEDPA's one-year statute of limitation introduced a new variable to the mixed petition equation. A post AEDPA petitioner could conceivably file a timely federal mixed petition, have it dismissed due to its mixed nature, and later be barred from pursuing the petition due to the limitations period, which expired while the petitioner was exhausting his claims in state court. The United States Supreme Court addressed this issue in Rhines v. Weber, 544 U.S. 269 (2005), holding that a federal habeas petition may, in limited circumstances, be held in abeyance to allow a petitioner to return to state court and exhaust his legal remedies. The district court is charged with determining whether it is appropriate to dismiss the petition without prejudice or to stay the federal proceedings to allow the petitioner to exhaust his state court remedies. The respondent in this instance urges that dismissal without prejudice is warranted.

The Rhines Court notes that two of the goals of AEDPA were to encourage the finality of state court judgments and to streamline federal habeas corpus proceedings, and the Court cautions that staying a case may ...


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