United States District Court, E.D. Arkansas, Northern Division
FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to United States District Judge 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
AND FEDERAL COURT PROCEEDINGS.
record reflects that on August 11, 2015, petitioner Richard
Weaver (“Weaver”) was charged in Cleburne County
Circuit Court case number CR-2015-160
(“2015-160”). He appears to have been detained in
the Cleburne County Jail while he awaited the final
disposition of the case.
January 6, 2017, or before the final disposition of 2015-160,
Weaver began the case at bar by filing a petition for writ of
habeas corpus pursuant to 28 U.S.C. 2254. In the petition and
in two subsequently filed pleadings, he challenged the
pre-trial proceedings that had occurred, or failed to occur,
up to that point in 2015-160.
Weaver advanced claims in more than one pleading, United
States District Judge Billy Roy Wilson gave Weaver an
opportunity to file an amended petition in which he
incorporated all of his claims into a single petition. When
Weaver failed to file an amended petition, respondent Wendy
Kelley (“Kelley”) was served with copies of,
inter alia, Weaver's initial petition and the
pleadings he filed in opposition to his prior custodial
agent's request for dismissal. The pleadings, taken
together, appeared to comprise Weaver's claims in the
case at bar.
subsequently filed a document that the Clerk of the Court
construed as a Notice to the Court. In the Notice, Weaver
represented that he desired to file an amended petition. Out
of an abundance of caution, and because Kelley would suffer
no prejudice, Kelley was temporarily relieved of her
obligation to file a response and Weaver was given another
opportunity to file an amended petition. He was directed to
incorporate all of his claims into his amended petition, and
he was warned that a claim not raised in the amended petition
would not be considered.
thereafter filed an amended petition for writ of habeas
corpus. Although he did not specifically mention 2015-160 in
the amended petition, he offered several reasons why his
constitutional rights were violated in that case. He alleged,
in full, the following:
I was appointed ... [counsel] that did nothing in the 19
months I was in jail, and my right to a speedy trial [was]
violated. I had been informed the public [defender] ... quit
my case. I was not given an [appropriate] mental
[evaluation]. The mental and physical decomp from being in
the county jail for that period of time has [affected] me in
many ways. Then under duress and confusion, I was forced to
sign a plea [bargain] by some random lawyer I have never met
or spoken with before who supposedly was representing me. I
have [reason] to believe that Judge Tim Weaver is related to
me and should not have had the right to conduct the court on
my case. I have found out that the Court has amended my
sentencing on two (2) separate accounts. I do not know what
was changed and did not know they could change or tamper with
signed documents without my presence or knowledge.
My family wasn't [informed] or [allowed] at the court.
The mental evaluation was rigged. [Ineffective counsel] and
poor, inappropriate court proceedings. The county jail kept
the money I had on the books [there] for [unknown] reasons. I
believe my sanity is at risk given the consequences of
everything leading up to now. I believe my rights have been
violated and that this all should be overturned and thrown
See Docket Entry 32 at CM/ECF 1-2.
filed a response to Weaver's amended petition. In the
response, Kelley maintained that Weaver's amended
petition should be dismissed because the claims contained in
the petition are procedurally barred from federal court
review, they are not cognizable in federal court, and they
otherwise warrant no relief. Kelley additionally provided a
chronology of the events that ultimately led to the final
disposition of 2015-160. The undersigned adopts the
chronology. It is, in part, as follows:
On January 31, 2017, [Weaver] appeared with counsel before
the circuit court of Cleburne County, Arkansas, and pleaded
guilty to the offenses of second-degree stalking, first
degree terroristic threatening, and reckless burning. ... The
court entered its sentencing order the following day,
February 1, 2017, showing that [Weaver] was sentenced to
terms in the Arkansas Department of Correction of 96 months
for second-degree stalking and no sentence imposed for the
terroristic threatening and reckless burning charges. ... A
first-amended sentencing order was entered on February 6,
2017, to reflect that [Weaver] had also been sentenced to
terms of 72 month[s] for both the terroristic-threatening and
reckless burning charges, as a notation at the bottom of page
3 of the sentencing order reflects. Those sentences for the
three offenses were ordered to run concurrently to each
other, so [his] total sentence was still 96 months. ... The
court entered a second-amended sentencing order on February
14, 2017. A notation at the bottom of page three of that
order explains that it corrected [his] date of birth and
“to correct the sentences of all offenses.” The
second-amended sentencing order showed that [Weaver] was
sentenced to 72 months on the stalking count and to terms of
24 months on both the terroristic threatening and reckless
burning charges. The sentences of 24 months were to be served
concurrently to each other, but consecutively to the 72-month
sentence. [His] total sentence was 96 months.
... Because [Weaver] pleaded guilty, he was not entitled to
appeal his convictions to the Arkansas appellate courts. ...
The dockets of the Arkansas Supreme Court and Arkansas Court
of Appeals do not reflect that there has been any appeal
filed by [Weaver] with regard to his convictions. The
circuit-court records in Cleburne County do not show that
[he] ever filed a petition for post-conviction relief under
Ark. R. Crim. P. 37 or any other postconviction motions or
petitions. Thus, there has been no appeal to the State's
appellate courts in any postconviction matters.
See Docket Entry 33 at CM/ECF 1-3.
was accorded an opportunity to file a reply to Kelley's
response. Weaver took advantage of that opportunity and filed
a reply. In it, Weaver alleged the following:
If I knew about all those rules and petitions, I would have
started somewhere else.
Tammy Harris [i.e., Weaver's first attorney] did
nothing for me. She never sent mail, never stopped by the
Jail and discussed the case. Never told her secretary to tell
me when I called that she had any messages for me. Absolutely
I went the entire year of 2016 without ever being taken to
court. What they are calling an evaluation was a joke. One
crazy old man who spoke to the jailer who carried me over
there and didn't even bother to give me a proper
examination. So no, I didn't get a mental evaluation. [I]
got to go for a ride is all that amounted to.
Y'all have no idea what it's like to be caged like a
dog for 19 months and when you get to go outside, you're
chained up like a dog. There is an extreme amount of mental
distress then when I finally got to go to court, some strange
guy sits me in a room and says this is what you're going
to do, and that if I embarrass him, that he and the
prosecutor would make my life worse than it already is.
Now, I've highlighted on the questions where I hesitated
and almost told the Judge that I was being forced to sign off
on that paperwork.
As far as the amended sentencing, I feel that any signed
document that is being changed no matter how small the change
is or what effect is has should still have all parties
When I was arrested, I had been under the influence of every
kind of drug I could find cause my mom passed away so I
didn't even know where I was at or what for ... the first
couple of weeks after being put in Jail so I really don't
know if anything really happened or not. I have no mental
recollection of anything.
See Docket Entry 35 at CM/ECF 1-2. Weaver
accompanied his reply with two pages from the transcript of
his change of plea/sentencing hearing. The pages apparently
reflect the point in the hearing when he allegedly
“hesitated” and “almost” reported to
being coerced into pleading guilty. See Docket Entry
35 at CM/ECF 2.
undersigned has now thoroughly reviewed the parties'
pleadings and exhibits. On the basis of that review, the
undersigned is persuaded that Weaver's petition should be
dismissed with prejudice.
U.S.C. 2254(b) provides that, with two exceptions not
applicable here, a petition for writ of habeas corpus shall
not be granted unless it appears that the petitioner has
exhausted the remedies available to him. 28 U.S.C. 2254(c)
provides that a petitioner shall not be deemed to have
exhausted the remedies available to him if “he has the
right ... to raise, by any available procedure, the question
presented.” State law determines if a state remedy is
presently available, and the state courts are the ones that
speak with final authority on the question. See Simpson
v. Camper, 927 F.2d 392 (8th Cir.1991). “If a
federal court is unsure whether a claim would be rejected by
the state courts, the habeas proceeding should be dismissed
without prejudice or stayed while the claim is fairly
presented to them.” See Rankin v. Norris, 2009
WL 1973465, 2 (E.D.Ark. 2009) (Moody, J.) (internal citations
Rule of Criminal Procedure 37.2 provides that a petitioner
who pleads guilty in an Arkansas state court has ninety days
within which to file a petition for post-conviction relief
(“Rule 37 petition”) in the appropriate circuit
court. Weaver pleaded guilty in 2015-160 on January 31, 2017,
and therefore had until approximately May 2, 2017, to file a
timely Rule 37 petition in Cleburne County Circuit Court. He
not only did not file a timely Rule 37 petition in Cleburne
County Circuit Court, he never filed a Rule 37 petition. His
claims in the petition at bar include a challenge to his
attorneys' representation, a claim that he can only be
raised in a Rule 37 petition. The question is whether this
case should be dismissed without prejudice or stayed so that
he can return to Cleburne County Circuit Court and attempt to
file a belated Rule 37 petition in which he raises a
challenge to counsels' representation.
time requirement of Rule 37.2 is “jurisdictional in
nature.” See Engram v. State, 2013 Ark. 424,
430 S.W.3d 82, 86 (2013). “If the time limitations of
the rule are not met, a trial court lacks jurisdiction to
consider a Rule 37.1 petition.” See Id. The
Arkansas Supreme Court has permitted the filing of a belated
Rule 37 petition upon a showing of good cause, but the
instances appear to be limited to capital cases. See
Id. (capital case, belated Rule 37 petition accepted).
See also Vera v. State, 2016 Ark. 238, --- S.W.3d
---, 2016 WL 3213608 (2016) (non-capital case, belated Rule
37 petition rejected); Thomas v. State, 2014 Ark.
123, 431 S.W.3d 923 (2014) (capital case, belated Rule 37
case should not be dismissed without prejudice or stayed so
that Weaver can return to Cleburne County Circuit Court and
attempt to file a belated Rule 37 petition. The undersigned
so finds because requiring him to do so would be requiring
him to perform a futile act. This case is not a capital case
and is not the type of case in which a belated Rule 37
petition would be accepted. Any attempt by him to file a
belated Rule 37 petition would be summarily rejected.
maintains that Weaver's claims in his petition are
procedurally barred from federal court review and cannot be
considered. Kelley so maintains because Weaver did not appeal
any aspect of his guilty plea and sentence and never filed a
Rule 37 petition.
the federal courts will not consider a claim if the
petitioner failed to first present it to the state courts in
accordance with the state's procedural rules. See
Wainwright v. Sykes, 433 U.S. 72 (1977). A claim can
nevertheless be considered if the petitioner can show cause
for his failure to properly present the claim or show that
the failure to consider the claim will result in a
fundamental miscarriage of justice because he is actually
innocent. See Wallace v. Lockhart, 12 F.3d 823 (8th
never presented any of his claims to the state courts of
Arkansas in accordance with its procedural rules. Thus, he
procedurally defaulted the claims, and the question is
whether his procedural default can be excused or otherwise
has offered no cause for his procedural default, and he does
not allege that he is actually innocent. Although he alleges
that his attorneys were ineffective, and ineffective
assistance of counsel can serve as cause for a default,
see Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309,
182 L.E.2d 272 (2012), his allegation cannot serve as cause.
It is not a “substantial” claim for the reasons
outlined in these Findings and Recommendation, and he never
filed a Rule 37 petition in the first instance.
alleges that he was mentally incompetent at the time he
pleaded guilty and, liberally construing his submission, was
incompetent during the time he could have filed a Rule 37
petition. Assuming without deciding that lack of competency
can serve as cause for a procedural default, there is nothing
to substantiate his allegation of impaired capacity, and he
never placed his mental competency in issue.
can show no cause for his procedural default, and he does not
allege that he is actually innocent. Thus, his claims cannot
be considered because they are procedurally barred from
federal court review. Out of an abundance of caution, though,
the undersigned will nevertheless briefly consider the merits
of each claim.
ASSISTANCE OF COUNSEL.
first claim involves a challenge to his attorneys'
representation. He alleges that his first attorney did
nothing during the nineteen months she represented him and
eventually quit. She allegedly never sent him mail, never
stopped by the jail to discuss his case, and never
communicated with him. Weaver alleges that he was forced to
sign a plea agreement by his ...