United States District Court, E.D. Arkansas, Pine Bluff Division
FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to United States District Billy Roy Wilson. 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 fact.
record reflects that on August 29, 2007, petitioner Michael
Benjamin (“Benjamin”) was convicted in an
Arkansas state trial court of two counts of delivery of a
controlled substance and sentenced to the custody of the
Arkansas Department of Correction. See Document 19,
Exhibits 1 and 2. He appealed his convictions. See
Id. The Arkansas Court of Appeals found no
reversible error and affirmed his convictions. See
November 25, 2008, Benjamin filed a state trial court
petition for post-conviction relief and challenged his 2007
convictions. See Document 19, Exhibits 1 and
The petition was denied, and Benjamin did not appeal the
adverse ruling. See Id.
January 23, 2009, Benjamin collaterally attacked his 2007
convictions by filing a petition for writ of habeas corpus
pursuant to 28 U.S.C. 2254 in the United States District
Court for the Western District of Arkansas. See Benjamin
v. Kelley, 5:09-CV-05019; Document 19, Exhibits 1 and 2.
In the petition, he raised the following four claims: 1) the
state trial court lacked jurisdiction, 2) his right to due
process was denied because he was mis-identified in the
police reports and a confidential informant was a convicted
felon, 3) there were numerous evidentiary errors at trial,
and 4) his trial attorney was ineffective because counsel
failed to challenge Benjamin's sentence. See Id.
United States District Judge Jimm Larry Hendren adopted the
report and recommendation of United States Magistrate Judge
James Marschewski and dismissed Benjamin's petition with
prejudice. See Id. Judge Hendren did so because
Benjamin's claims lacked merit or were procedurally
barred from federal court review. See Id.
records maintained by the Clerk of the United States Court of
Appeals for the Eighth Circuit reflect that on January 15,
2016, Benjamin filed a “Motion for Certificate of
Appealability” in 5:09-CV-05019 with the Court of
Appeals. The Court of Appeals construed the motion, in part,
as an application for permission to file a successive
petition for federal habeas corpus relief. See
Document 19, Exhibit 3. The Court of Appeals denied the
“Motion for Certificate of Appealability” and
application for permission to file a successive petition for
federal habeas corpus relief. See Id.
August 5, 2016, Benjamin commenced the case at bar and
collaterally attacked his 2007 convictions a second time by
means of a petition for writ of habeas corpus pursuant to 28
U.S.C. 2254. In the petition, he raised the following claims:
Actual innocence, petitioner was not charged with delivery of
meth, due process violation. I was charged with aggravated
assault, possession of a controlled substance, simultaneous
possession of drugs and firearm, and furnishing prohibited
articles to [a] prisoner. When I refuse[d] to plea to these
charges, I was convicted of delivery of meth, a crime for
which I was not charged. (The arrest was capture[d] on the
arresting officers['] dash-cam.)
Ineffective assistance of counsel. Trial counsel failed to
explore exonerating evidence by not submitting police
reports, booking sheets, bond contact, and preliminary
reports (the charging instrument).
Trial court lacked jurisdiction. The trial court lacked
subject-matter jurisdiction as I was not charged with
delivery of meth. The state['s] case was fabricated.
Prosecutorial misconduct. The conviction resulted from the
prosecution's knowing use of false testimony at
trial/perjury testimony and false evidence.
See Document 2 at CM/ECF 5-10. Benjamin buttressed
his claim of actual innocence by filing a number of
supporting documents, including police reports; a booking
sheet from the Washington County, Arkansas, Detention Center;
a bond contract; and a “charging instrument.”
See Document 2 at CM/ECF 13, 16-26.
Wendy Kelley (“Kelley”) responded to
Benjamin's petition by filing the pending motion to
dismiss. See Document 18. In the motion, Kelley
maintained that ...