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Barnett v. Kelley

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

October 5, 2016

LEONARD J. BARNETT ADC #096041 PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge Brian S. Miller. 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.

         Mail any objections to:

Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR 72201-3325

         I. Background

         Pending before the Court is a § 2254 Petition for a Writ of Habeas Corpus filed by Petitioner, Leonard J. Barnett (“Barnett”). Doc. 2. Before addressing Barnett's habeas claims, the Court will review the procedural history of the case in state court.

         On April 4, 2001, Barnett appeared, with counsel, in the Circuit Court of Saline County, Arkansas, and, pursuant to a negotiated plea, pleaded guilty to sexual abuse in the third degree. Doc. 6-2 at 1. In exchange for his plea, the prosecutor reduced the original charge from rape to sexual abuse in the third degree and nolle prossed the habitual offender enhancement. Doc. 6-2 at 4. The Court imposed a sentence of three years' probation. The Order imposing probation conditions directed Barnett to: “[r]eport to [the] probation office immediately to set up sex offender registration.”[1] Doc. 6-2 at 1-2. State of Arkansas v. James Barnett, Saline County Circuit Court Case No. CR00-588 (“2001 conviction”). Barnett did not appeal the conviction or sentence. Nor did he file any type of post-conviction motion.[2]

         On October 14, 2011, Barnett appeared, with counsel, in the Circuit Court of Saline County, Arkansas, and pleaded guilty, in three separate pending criminal cases, to various offenses related to his failure to comply with state statutory requirements imposed on him due to his sex offender status.[3] See State of Arkansas v. Barnett, Saline County Circuit Court cases CR2009-568-1, CR2011-504-4, and CR 2011-030-4 (collectively, “2011 convictions”).[4] For each of the three 2011 convictions, the Court imposed the same sentence - 60 months imprisonment. All three sentences were to be served concurrently.[5] Doc. 6-1 (Judgment and Commitment Orders). Nothing in the record suggests that Barnett attempted to appeal or to seek post-conviction relief regarding any of the three convictions.

         On December 18, 2014, the Arkansas Parole Board (“Parole Board”) denied Barnett's “parole plan.” Doc. 6- at 16. Nothing in the record suggests that Barnett attempted to appeal the Parole Board's denial of parole.

         On July 31, 2015, Barnett filed this habeas action, in which he contends that his constitutional liberty rights have been infringed without due process and equal protection because the Parole Board denied him parole. He specifically complains that the Parole Board rejected his plan to live at 1513 Oak Street, Benton, Arkansas (“proposed home address”) because it was too close to a school or park.[6] Docs. 2 & 6-3 (inmate summary). Barnett requests habeas relief in the form of an Order: (1) requiring the Parole Board to allow him to parole to his proposed home address; or (2) requiring the Parole Board to show cause what law prohibits him from returning to his proposed home address.

         Respondent argues Barnett's claims are not cognizable in a § 2254 habeas action, or alternatively, the claims should be dismissed based on failure to exhaust and procedural default. Doc. 6. The Court directed Barnett to file a Reply, but he failed to do so. Doc. 7. Thus, the issues are joined and ripe for resolution.

         For the reasons discussed below, the Court recommends that the Petition for a Writ of Habeas Corpus be denied, and that the case be dismissed, with prejudice.[7]

         II. Discussion

         Section 2254 “unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)). “‘[F]ederal habeas corpus relief does not lie for errors of state law.'” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (omitting citations). Thus, this Court's authority in resolving Barnett's habeas Petition is limited to determining whether a federal constitutional violation has occurred. Accordingly, any questions surrounding whether the Parole Board correctly applied state law or properly followed its own policies may not be resolved in this federal habeas action.

         A protected liberty interest “may arise from the Due Process Clause itself or from an expectation or interest created by state law or policies.” Jenner v. Nikolas, 828 F.3d 713 (8th Cir. 2016) (citing Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Under well-established federal law, Barnett does not have a protected liberty interest in the possibility of being granted parole, much less in being paroled to a specific address. See Swarthout v. Cooke, 562 U.S. 116, 220 (2011) (“There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners.”); Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”). The mere possibility of parole, without more, provides at most a hope that the benefit ...


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