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Weaver v. Kelley

United States District Court, E.D. Arkansas, Northern Division

January 17, 2018

RICHARD WEAVER 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 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 fact.

         DISPOSITION

         STATE AND FEDERAL COURT PROCEEDINGS.

         The 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.

         On 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.

         Because 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.

         Weaver 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.

         Weaver 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 out.

See Docket Entry 32 at CM/ECF 1-2.

         Kelley 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.

         Weaver 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 nothing.
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 present.
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.

         The 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.

         EXHAUSTION.

         28 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 omitted).

         Arkansas 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.

         The 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 petition accepted).

         This 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.[1] 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.

         PROCEDURAL BAR.

         Kelley 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.[2]

         Generally, 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 Cir. 1994).

         Weaver 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 overlooked.

         Weaver 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.[3]

         Weaver 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.

         Weaver 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.

         INEFFECTIVE ASSISTANCE OF COUNSEL.

         Weaver's 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 ...


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