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Stewart v. Kelley

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

January 25, 2016

WENDY KELLEY, Director of the Arkansas Department of Correction, Respondent.


PATRICIA S. HARRIS, Magistrate Judge.


The following recommended disposition has been sent to United States District Court Judge J. Leon Holmes. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court Clerk within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.


Ronald Gene Tucker Stewart ("Stewart") filed an application for writ of habeas corpus pursuant to 28 U.S.C. ยง2254. He is currently in the custody of the Arkansas Department of Correction (ADC) after pleading guilty in the Circuit Court of Pulaski County to failure to register as a sex offender. He was sentenced as an habitual offender on February 2, 2015, to 60 months of imprisonment. Stewart did not file a Rule 37 petition with the trial court challenging the entry of his guilty plea or the competence of his attorney.

Liberally construing his federal habeas corpus petition, Stewart claims:

(1) he received ineffective assistance of trial counsel because his attorney allowed him to plead guilty to a charge "he didn't have knowledge of at time" (petition, page 1): and
(2) his guilty plea was not voluntarily entered.

Respondent Wendy Kelley ("Kelley") contends both claims are not properly before this Court due to Stewart's failure to adequately raise the claims in state court, as required by Wainwright v. Sykes, 433 U.S. 72 (1977), and its progeny. Specifically, Kelley contends Stewart failed to raise the claims in a Rule 37 petition, and the time allowed for doing so has now expired. By previous Order, Stewart was informed of his opportunity to explain why the claims are not procedurally barred. Stewart did not submit a response to the Court's November 16, 2015 Order.

Here, it is evident that Stewart did not pursue his claims in state court and they appear to be procedurally barred from our consideration. We are mindful, however, that the Court has the discretion to consider the merits of the claims rather than embracing the procedural default analysis. In considering this issue, we are guided by the following language of the Eighth Circuit Court of Appeals:

In cases such as this, it might well be easier and more efficient to reach the merits than to go through the studied process required by the procedural default doctrine. Recent commentary points up the problems with the cause and prejudice standard:
[T]he decision tree for habeas review of defaulted claims is intricate and costly.... In essence, Sykes and Strickland require habeas lawyers and federal judges and magistrates to work through the equivalent of a law school exam every time a defendant tries to escape procedural default.

McKinnon v. Lockhart, 921 F.2d 830, 833 n.7 (8th Cir. 1990) (quoting Jeffries & Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Corpus, 57 U.Chi.L.Rev. 679, 690 (1990)). Efficiency is served by proceeding to the merits of the claims advanced by Stewart.

Ineffective assistance of counsel: For his first claim, Stewart faults his attorney for "allowing petitioner to plea to a charge he didn't have knowledge of at time." Petition, page 1. In order to prove ineffective assistance of counsel, Stewart must prove that (1) his attorney's actions were unreasonable when viewed in the totality of the circumstances; and (2) he was prejudiced because there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 688 (1983); Ryder v. Morris, 752 F.2d 327, 331 (8th Cir. 1985). In the context of a guilty plea, Stewart must demonstrate it is reasonably probable that, but for his attorney's errors, he would have not entered a guilty plea and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985). Stewart also bears a heavy burden in overcoming "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; Kellogg v. Scurr, 741 F.2d 1099, 1101 (8th Cir. 1984); Bell v. Lockhart, 741 F.2d 1105, 1106 (8th Cir. 1984). This presumption is created ...

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