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Moore v. Kelley

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

February 18, 2016

DEVARIOUS MOORE ADC #133403, Petitioner,
v.
WENDY KELLEY, Director, Arkansas Department of Correction[1], Respondent.

RECOMMENDED DISPOSITION

J. THOMAS RAY, Magistrate Judge.

The following Recommended Disposition ("Recommendation") has been sent to United States District 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 within fourteen (14) days of the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.

I. Background

Pending before the Court is a ยง 2254 habeas Petition filed by Petitioner, Devarious Moore ("Moore"). Doc. 1. Before addressing Moore's habeas claims, the Court will review the relevant procedural history of this case in state court.

On May 5, 2005, Moore entered guilty pleas in two cases in Crittenden County Circuit Court. In Case No. CR2004-401 (" Moore I "), he pleaded guilty to a pending probation revocation petition[2] and was sentenced to 120 months in the ADC. Doc. 8-1 at 17. In Case No. CR2005-269-A, (" Moore II "), he pleaded guilty to the sale of a controlled substance, a Class Y felony, and received a 120-month "suspended imposition of sentence."[3] The sentencing judge imposed the two sentences to run concurrently. Doc. 8-1 at 19.

The record is unclear on when Moore was paroled from the ADC; however, it appears to have been sometime prior to approximately August 1, 2007.

On September 14, 2007, the state filed a Petition to revoke Moore's suspended sentence in Moore II based on new criminal conduct that he allegedly committed on August 8, 2007. Doc. 8-1 at 21. On September 21, 2007, that revocation petition was nolle prossed. Doc. 8-1 at 23.

On November 10, 2010, the state filed another Petition to revoke Moore's suspended sentence in Moore II based on new criminal conduct that he allegedly committed sometime in 2010. Doc. 8-1 at 24. On January 18, 2011, that revocation petition was nolle prossed. Doc. 8-1 at 31.

On April 14, 2012, the state filed a third Petition to revoke Moore's suspended sentence in Moore II. Doc. 8-1 at 32. It alleged that Moore had: (1) failed to pay court costs and fees; (2) failed to notify the sheriff of his current address and place of employment; and (3) engaged in new criminal conduct consisting of first-degree domestic battery, kidnapping, possession of a controlled substance with the purpose to deliver, and the possession and use of marijuana. Id.

On June 26, 2012, after conducting a revocation hearing, the trial court revoked Moore's suspended sentence in Moore II, and entered a Judgment and Commitment Order that sentenced him to 300 months in the ADC. Doc. 8-1 at 37.

Moore appealed his conviction and sentence to the Arkansas Court of Appeals, which affirmed on March 6, 2013. Moore v. State, 2013 Ark.App. 159, 2013 WL 840837 (2013). After the appellate mandate issued, on March 26, 2013, Moore did not pursue Rule 37 relief.

Moore initiated this habeas action on March 17, 2014. Doc. 1. In his Petition, he argues that: (1) there was insufficient evidence that he violated any condition of his suspended sentence in Moore II; (2) the trial court failed to provide him with a written statement of reasons for revoking his suspended sentence; (3) he received ineffective assistance of counsel at his revocation hearing; and (4) the 300-sentence he received is "illegal."

Respondent argues that Moore's habeas claims are: (1) not cognizable in a habeas action; (2) procedurally defaulted; and (3) fail on the merits. Doc. 8.

For the reasons discussed below, the Court recommends that the Petition for a Writ of Habeas Corpus be denied, and that the ...


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