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Benjamin v. Kelly

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

January 18, 2017

MICHAEL BENJAMIN PETITIONER
v.
WENDY KELLEY, Director of the Arkansas Department of Correction RESPONDENT

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The 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.

         FINDINGS AND RECOMMENDATION

         The 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.[1] The Arkansas Court of Appeals found no reversible error and affirmed his convictions. See Id.

         On 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 2.[2] The petition was denied, and Benjamin did not appeal the adverse ruling. See Id.

         On 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.

         The 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.

         On 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.

         Respondent Wendy Kelley (“Kelley”) responded to Benjamin's petition by filing the pending motion to dismiss. See Document 18. In the motion, Kelley maintained that ...


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