United States District Court, W.D. Arkansas, Harrison Division
DINZEL E. NORMAN PETITIONER
GRANT HARRIS, WARDEN RESPONDENT
MAGISTRATE JUDGE'S REPORT AND
E. FORD, UNITED STATES MAGISTRATE JUDGE
the Court is the Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody filed by
Petitioner, Dinzel E. Norman (“Norman”), on
September 14, 2017. (ECF No. 1). On September 15, 2017, the
Court entered an Order (ECF No. 3) directing Norman to cure
certain deficiencies in his Petition, namely: (1) it does not
name as respondent the state officer who presently has
custody of the Petitioner; (2) it is only in part on the
standard form for a petition under 28 U.S.C. § 2254;
and, (3) it is not signed under penalty of perjury by the
Petitioner. In compliance with the Court's Order,
Petitioner filed his supplemented and amended Petition with
the Court on October 11, 2017. (ECF No. 4). The Court ordered
the Respondent to answer or otherwise respond to the Petition
within 21 days. (ECF No. 5). The date for filing an answer or
other response was extended to November 23, 2017 by Order
entered on November 13, 2017. (ECF No. 11). Respondent filed
a Motion to Dismiss Petition for Writ of Habeas Corpus on
November 22, 2017. (ECF No. 12). The matter is ready for
Report and Recommendation.
September 6, 1994, following a jury trial in the Circuit
Court of Newton County, Arkansas, Norman was convicted of
conspiracy to manufacture a controlled substance,
methamphetamine, in violation of A.C.A. §§ 5-64-401
and 5-3-401, and of manufacture of a controlled substance,
marijuana, in violation of A.C.A. § 5-64-401. He was
sentenced to a term of 240 months and 120 months
imprisonment, respectively, in the Arkansas Department of
Correction (“ADC”). (ECF No. 13-2, p. 2). The ADC
took custody of Norman on December 7, 1994. (ECF No. 13-2, p.
pursued a direct appeal to the Arkansas Supreme Court in
which he argued the trial court erred in denying his motion
to suppress physical evidence recovered from his residence
pursuant to a search warrant. Norman v. State, 326
Ark. 210, 211, 931 S.W.2d 96, 97 (1996). The Arkansas Supreme
Court affirmed Norman's convictions in an Opinion filed
on October 7, 1996. Id.
then sought relief in a Petition for Post-Conviction Relief
pursuant to Rule 37, Arkansas Rules of Criminal Procedure,
filed in the Newton County Circuit Court on December 13,
1996. (ECF No. 13-7). After conducting an evidentiary
hearing, the trial court denied Norman's Rule 37 petition
on December 11, 1997. (ECF No. 13-6, p. 1). Norman appealed
the denial of his Rule 37 petition to the Arkansas Supreme
Court. He raised three points on appeal: (1) ineffective
assistance of trial counsel due to a conflict of interest
caused by counsel's dual representation of Norman and the
State's key witness against him; (2) ineffective
assistance of trial counsel for failure to communicate a plea
offer; and, (3) ineffective assistance of trial counsel for
failure to put forth a vigorous defense. Norman v.
State, 339 Ark. 54, 57-61, 2 S.W.3d 771, 773-75 (1999).
On October 21, 1999, the Arkansas Supreme Court reversed and
remanded in part, and affirmed in part. In its Opinion, the
Supreme Court found the trial court's decision that
Norman's counsel was not also representing the
State's witness to be clearly against the preponderance
of the evidence, and the issue was remanded back to the trial
court for an analysis of whether counsel's dual
representation was an actual conflict of interest that
adversely affected counsel's performance. Id.,
339 Ark. at 57-60. Finding that the evidence could support a
ruling either way on Norman's second issue, the Supreme
Court held the trial court's decision was not clearly
against the preponderance of the evidence on that issue, and
denial of relief on that point was affirmed. Id.,
339 Ark. at 60-61. The Supreme Court found no written
findings by the trial court on Norman's third point, in
violation of Bumgarner v. State, 288 Ark. 315, 705
S.W.2d 10 (1986) requiring written findings of fact on any
issue upon which a Rule 37 hearing is held, and that issue
was also remanded back to the trial court. Norman,
339 Ark. at 61. Following the remand, and pursuant to a
negotiated plea of guilty, an Amended Judgment and Commitment
Order was entered by the Newton County Circuit Court on April
7, 2000, in which Norman was sentenced to 240 months in the
ADC on the conviction for conspiracy to manufacture a
controlled substance, methamphetamine, and 120 months in the
ADC on the conviction for manufacture of a controlled
substance, marijuana, the sentences to run concurrently. (ECF
No. 13-2, pp. 9-12). Norman's Rule 37 petition was
dismissed with prejudice. (Id., at p. 11).
24, 1998, while his Rule 37 appeal was still pending in the
Arkansas Supreme Court, Norman filed a petition under 28
U.S.C. § 2254 in this Court. (See Case No.
3:98-cv-03045-HFW, ECF No. 1). On August 31, 1998, this Court
dismissed the petition without prejudice. (Id., ECF
October 11, 2000, Norman was released on parole. (ECF No.
13-2, p. 4). On October 25, 2004, he was fully discharged
from his sentences. (Id.).
September 14, 2017, Norman filed his pro se Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody. (ECF No. 1). This was supplemented
by his filing on October 11, 2017. (ECF No. 4). Liberally
construing Norman's pro se petition, he asserts
four grounds for relief: (1) the State violated Arkansas'
speedy-trial rule; (2) ineffective assistance of trial
counsel for failing to move for dismissal based on the
alleged speedy-trial violation; (3) ineffective assistance of
trial counsel due to a conflict of interest; and, (4)
ineffective assistance of trial counsel due to failure to
present a vigorous defense. (ECF No. 4, p. 5).
moves to dismiss on the basis that Norman does not satisfy
the jurisdictional “in custody” requirement of 28
U.S.C. § 2254 and Rule 2, Rules Governing § 2254
Proceedings. (ECF No. 13).
reasons discussed below, this Court lacks subject matter
jurisdiction to consider Norman's petition and it should
be dismissed with prejudice.
U.S.C. § 2254(a) provides that a district court
“shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws
or treaties of the United States.” (Emphasis added).
Rules Governing § 2254 Proceedings, similarly requires
that a petitioner seeking relief be in custody, or be subject
to future custody, ...