United States District Court, E.D. Arkansas, Batesville Division
Thurman Russell, Plaintiff, Pro Se.
Kelley, Defendant, represented by Pamela Rumpz, Arkansas
Attorney General's Office.
PROPOSED FINDINGS AND RECOMMENDATION
PATRICIA S. HARRIS, Magistrate Judge.
following Proposed Findings and Recommendation have been sent
to United States District Court Judge James M. Moody, Jr. 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 this Recommendation. By not
objecting, you may waive the right to appeal questions of
2006, Thurman Russell ("Russell") was convicted by
a Baxter County jury on two charges of solicitation to commit
capital murder. Russell was sentenced to consecutive 360
month terms of imprisonment in the Arkansas Department of
Correction ("ADC"). A direct appeal was
unsuccessful. Russell v. State, 2008 WL 5176632
(Ark.App.) (an unpublished opinion). Russell filed a Rule 37
petition with the trial court, alleging six claims for
relief. That petition was denied without a hearing, and
Russell's appeal was dismissed by the Supreme Court of
Arkansas in June 2010. In January 2011 Russell sought a state
court writ of habeas corpus, arguing many of the same grounds
advanced in his Rule 37 petition. The state court habeas
petition was dismissed in March 2011.
Russell's federal habeas corpus petition, filed on May
27, 2016, he alleges the ADC is improperly denying him 411
days of good time earned prior to his conviction in Baxter
County, and 681 days of good time since entering ADC custody.
response, respondent Wendy Kelley ("Kelley") moves
to dismiss the petition for writ of habeas corpus. Kelley
contends Russell may not pursue federal habeas corpus relief
until he has first exhausted available state court avenues
for relief. Questions of available state remedies require
this Court to look to the provisions of 28 U.S.C. 2254(b) and
(c). These subsections codify the doctrine of comity by
requiring the exhaustion of state remedies prior to bringing
federal habeas corpus claims. Lenza v. Wyrick, 665
F.2d 804 (8th Cir. 1981). This exhaustion requirement is
necessary in order to afford the state courts the opportunity
to correct any constitutional errors before federal courts
intervene. Id. However, this requirement will not be
construed so as to require the filing of repetitious or
futile applications for relief in state court. Powell v.
Wyrick, 621 F.2d 921, 923 (8th Cir. l980). In addition,
a federal court should defer action only "if there is
some reasonable probability that the relief which the
petitioner seeks will actually be available to him."
Powell v. Wyrick, 657 F.2d at 224. Consequently, we
must determine whether Russell has an available state remedy.
Russell's challenge is to the computation and execution
of his sentence, a topic which is typically reserved for
state officials. It appears that the petitioner has failed to
exhaust his state court remedies because he has not brought a
request for declaratory judgment or writ of mandamus raising
the "good time" issue which he now presses in his
habeas petition. A request for declaratory relief and writ of
mandamus are procedures whereby Russell may challenge the
execution and computation of his sentence. In Michalek v.
Lockhart, 292 Ark. 301, 730 S.W.2d 210 (1998), an inmate
used this procedure to challenge his classification for
parole purposes. It has been used by other inmates in similar
circumstances. St. John v. Lockhart, 286 Ark. 234,
691 S.W.2d 148 (1985); Bargo v. Lockhart, 279 Ark.
180, 650 S.W.2d 227 (1983). Russell's claim in this case
is that the state has improperly calculated his sentence,
failing to properly credit him for good time on two
occasions. This claim would appear to be cognizable in state
state procedure is available, it cannot be said that the
exhaustion requirement of 28 U.S.C. Â§2254 has been satisfied.
This is precisely the situation at bar. Russell can challenge
his sentence in state court by filing a request for
declaratory judgment and writ of mandamus.
result, we find that Russell must exhaust his available state
court remedies as required by 28 U.S.C. Â§ 2254(b) & (c). It
follows that we recommend that the petition be dismissed
without prejudice to allow Russell to pursue relief in state
upon the foregoing, we recommend that the petition for writ
of habeas corpus be dismissed without prejudice to allow
Russell to seek appropriate relief in state court, and the
relief requested be denied.
to 28 U.S.C. Â§ 2253 and Rule 11 of the Rules Governing
Section 2554 Cases in the United States District Court, the
Court must determine whether to issue a certificate of
appealability in the final order. In Â§ 2254 cases, a
certificate of appealability may issue only if the applicant
has made a substantial showing of the denial of a
constitutional right. 28 U.S.C. Â§ 2253(c)(1)-(2). The Court
finds no issue on which petitioner has made ...