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Douglas v. Hobbs

United States District Court, W.D. Arkansas, El Dorado Division

April 25, 2016

MICHAEL L. DOUGLAS, Petitioner,
v.
RAY HOBBS, Director Arkansas Department of Corrections, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BARRY A. BRYANT, Magistrate Judge.

         Petitioner, Michael Larenzo Douglas ("Douglas"), an inmate confined in the Arkansas Department of Correction, Ouachita River Unit, Malvern, Arkansas, filed a "Petition to Void Judgement" which the Court has determined is a Petition for Writ of a Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. The Petition was referred for findings of fact, conclusions of law and recommendations for the disposition of the case. The Respondent, Director, filed his Response on November 25, 2014. ECF No. 7. For the reasons set forth below the Petition should be dismissed.

         A. Procedural Background[1]:

         Douglas brings this action challenging his conviction in Drew County Circuit Court for escape, kidnaping and theft in 1985. ECF No. 1. On May 22, 1985, Douglas pled guilty to escape, kidnaping and theft of property in Drew County, Arkansas. ECF No. 7. He was sentenced to concurrent terms of imprisonment of ten years for escape, twenty years for kidnaping, and 20 years for theft. He did not appeal these sentences. He also did not seek state post-conviction relief.

         In 1993, Douglas filed a petition under § 2254 in the United States District Court for the Eastern District of Arkansas. See Douglas v. Endell, Cause No. PB-C-93-212 (ED Ark. 1993). In this petition, he attacked the 1985 conviction and sentence from Drew County. ECF No. 7. He claimed his guilty plea was unlawful and involuntary, the state failed to disclose exculpatory evidence prior to his conviction, and that he was denied effective assistance of counsel. The United States District Court in the Eastern District of Arkansas, dismissed this petition because of Petitioner's failure to raise these claims in the state courts prior to seeking federal relief. ECF No. 7.

         In 1994, Douglas filed a state petition for habeas corpus relief. He again claimed the trial court lacked jurisdiction because it failed to hold a hearing to determine whether his case should be transferred to juvenile court. The trial court denied the petition. On appeal, the Arkansas Supreme Court again ruled there was no error and dismissed the appeal. See Douglas v. State, 94-1174, 1995 WL 30578 (Ark. Jan. 23, 1995).

         Douglas next sought relief, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Western District of Arkansas. See Douglas v. Hobbs, No. 1:13-CV-1086 (W.D. AR 2013). He filed that petition on November 5, 2013. In this federal petition he alleged: (1) the trial court lacked subject matter jurisdiction as he was a juvenile, and (2) ineffective assistance of counsel.

         The District Court denied his petition holding the petition was time barred. Douglas appealled this decision and on July 1, 2015, the United States Court of Appeals for The Eight Circuit denied the certificate of appealability and dismissed the appeal. See Douglas v. Kelley, No. 15-1414 (8th Circuit 2014).

         B. Instant Petition:

         Douglas filed the instant Petition, pursuant to § 2254, on October 2, 2014. ECF No. 1. In this Petition he alleges his 1985 conviction is void because the state court did not have subject-matter jurisdiction over him and his counsel was ineffective. The Respondent asserts the instant Petition should be dismissed as a successive petition, filed without permission of the Court of Appeals pursuant to 28 U.S.C. 2244(b)(3). ECF No. 7. Respondent also asserts the claim is untimely. Id.

         C. Discussion:

         Douglas clearly filed an earlier petition seeking habeas corpus relief. He has not shown he requested and received permission from the United States Court of Appeals for the Eighth Circuit to file the instant second petition as required by § 2244 (b)(3). Title 28 United States Code Section 2244 states in pertinent part:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior ...

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