United States District Court, E.D. Arkansas, Pine Bluff Division
BILLY WAYNE STEWART, SR. ADC #104406 PETITIONER
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT
Marshall Jr. United States District Judge.
Stewart was forty-seven years old when he was convicted of
rape. The facts left no doubt on guilt. Stewart's victim
had the mind of a six-year-old. She gave birth to his child.
Stewart's only defense was consent.
only substantial issue raised on habeas is
ineffective assistance of trial counsel at the sentencing
phase. Everyone involved - defense counsel, the prosecutor,
and the trial court-handled the sentencing as if Stewart
would be eligible for parole after serving seventy percent of
his sentence. The State argued for life imprisonment, but
fell back to explaining the seventy percent result if a term
of years was imposed. No 16-1 at
518, 525. Stewart's lawyer sought some period less
than life and also discussed parole eligibility.
No 16-1 at 523-24. The trial
court gave an agreed instruction that echoed the error,
saying Stewart would be parole eligible. No 16-1 at 515.
not. Some years before, Stewart had been convicted of first
degree battery under Arkansas Code Annotated § 5-13-201.
This violent felony eliminated his parole eligibility. Ark.
Code ANN. § 16-93-609. This conviction, along with six
others, came into evidence during the sentencing phase of
Stewart's rape trial. The jury rejected the
prosecutor's argument for a life sentence and settled on
seventy years. Under the court's mistaken instruction and
counsel's mistaken arguments, that sentence meant parole
eligibility when Stewart is ninety-six. The truth is,
he'll never be eligible.
State's procedural bar argument fails. Stewart tried to
raise this issue in his state post-conviction proceeding. He
was pro se at that point. The trial court rejected
his argument out of hand. No 16-2 at
88, 232, 258-59. In any event, Martinez v. Ryan, 566
U.S. 1, 13-15 (2012), and Trevino v. Thaler, 133
S.Ct. 1911, 1921 (2013), open the merits in these
circumstances on a substantial claim like Stewart's.
Trial counsel's work was constitutionally defective.
Arkansas's parole eligibility statutes are clear and
settled law. ARK. CODE ANN. §§ 16-93-609(b)(2)
& 5-4-501 (d)(2)(A)(vi). The material fact-the prior
battery first conviction-was obvious and in the case. That
Stewart's lawyer was joined in the error by the
prosecutor and the trial court doesn't change the
conclusion. The Sixth Amendment puts the duty of reasonable
competence on defense counsel. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). We all make
mistakes all the time, of course. But some mistakes by trial
counsel have constitutional consequences.
deep issue is prejudice. It's close. The State makes a
strong argument that the jury's sentence, though clouded
by legal error, was actually and effectively a life sentence.
Few of us will reach ninety-six. So we should tolerate the
error, the State continues, because it didn't make any
real difference. Stewart counters -through appointed counsel,
whose work the Court appreciates - that he's carried his
burden and shown enough to get a new sentencing trial.
as everyone recognizes, provides the governing law. Stewart
"must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." 466 U.S. at 694.
State hammers home, the Supreme Court rejected a
possible-effect standard as too loose. "It is
not enough for [Stewart] to show that the errors had some
conceivable effect on the outcome of the proceeding.
Virtually every act or omission of counsel would meet that
test[.]" 466 U.S. at 693. That standard would pay
insufficient respect to the need for finality, as well as
insufficient attention to lawyers' human imperfections.
Court likewise rejected the outcome-determinative
rule that some Courts of Appeal had adopted. "[Stewart]
need not show that counsel's deficient conduct more
likely than not altered the outcome of the case." 466
U.S. at 693. Though it has many strengths, that stricter
standard would give insufficient weight to one of the chief
guarantors of the fair administration of justice:
constitutionally effective work by counsel. "The result
of a proceeding can be rendered unreliable, and hence the
proceeding itself unfair, even if the errors of counsel
cannot be shown by a preponderance of the evidence to have
determined the outcome." 466 U.S. at 694. Thus the
middle way charted by the Court: a reasonable probability -a
probability sufficient to undermine confidence -that, but for
counsel's errors, Stewart's sentence would have been
hasn't carried his burden. The jury heard the troubling
facts of this case: Stewart was a family friend. He knew his
victim functioned on a first-grade or second-grade level.
Nonetheless, when her parents took Stewart in, he had sex
with their daughter; and she spent the next eight months
unaware that she was carrying Stewart's child. After
hearing these facts, the jury gave Stewart a sentence it
believed would keep him in prison until he's ninety-six.
jury had heard a correct parole-eligibility instruction,
it's possible they would have given Stewart a
shorter sentence. But in light of the bad facts,
Stewart's age, and the lengthy sentence imposed, it's
just that-a possibility. The system malfunctioned in his
case, but not to a degree that undermines confidence in the
result. This is a close case; but Stewart hasn't quite
cleared the prejudice bar.
Recommendation, No 33,
adopted as modified. Stewart's petition for a writ of
habeas corpus is denied and will be dismissed with
prejudice. The Court grants Stewart a certificate of
appealability on one issue: did trial counsel's defective
performance about parole eligibility prejudice Stewart. 28