United States District Court, E.D. Arkansas, Pine Bluff Division
MEMORANDUM AND ORDER
November 23, 2016, Petitioner Kevin Darnell Jones filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (Doc. No. 2) Jones is currently housed in the
Tucker Unit of the Arkansas Department of Correction (ADC).
Reading this pro se petition liberally, Jones's claims
are that the Court, the prosecutor, and his attorney failed
to tell him that his plea agreement would not be honored.
Jones alleges that the prosecutor used his past prior
convictions to enhance his plea deal already negotiated and
agreed upon, wherein “all habitual offenders acts and
all enhancements [would be] dismissed. (Doc. No. 2, p. 6) He
also argues he was subjected to double jeopardy and contends
for the first time in this petition that the trial court
improperly denied a motion for continuance at his sentencing
hearing and that he was not allowed to obtained his latest
medical records. (Doc. No. 2, pp. 5-8) On January 10, 2017,
Jones consented to the jurisdiction of the United States
Magistrate Judge, and the case was reassigned to the
undersigned. (Doc. No. 9) For the reasons that follow, the
petition for writ of habeas corpus is denied with prejudice.
All pending motions are denied as moot.
October 1, 2015, Jones pleaded guilty to one count of felon
in possession of a firearm and no contest to one count of
first-degree battery. The Plea Statement indicates Jones
understood the charges against him and the range of
punishment for each, but he voluntarily waived his rights, to
among other things, plead not guilty and go to trial and
appeal if convicted, and admit his guilt. (Doc. No. 10-2) The
Sentencing Order indicates that Defendant pleaded directly to
the Pulaski County (Arkansas) Circuit Court and did not enter
a negotiated plea. (Doc. No. 10-3) The sentencing court
imposed a 180 month sentence for first-degree battery that
ran concurrent to a 60 month sentence for possession of
firearms by certain persons. (Id.)
was no appeal from the sentencing order because Jones was not
entitled to challenge the validity of his plea in a direct
appeal. See Ark. R. App. P. - Crim. 1(a). On June
14, 2016, Jones filed a Rule 37 petition alleging ineffective
assistance of counsel. (Doc. No. 10-4) In the petition, Jones
alleges his counsel “failed to do his job” by
failing to interview witnesses and failing to communicate
plea offers, failing to prevent him from being subject to
double jeopardy, and failing to prepare him for trial.
(Id.). On June 27, 2016, the circuit court denied
the petition for post-conviction relief. (Doc. No. 10-5)
Jones did not appeal the denial of his Rule 37 petition.
admits that Petitioner is in her custody; however, she denies
that he is entitled to habeas relief. Instead, Respondent
asserts that Petitioner's claims are not only
procedurally defaulted but also without merit. (Doc. No. 10,
habeas petitioner who cannot present his federal claims in
state court due to untimeliness or some other state
procedural hurdle meets the technical requirements for
exhaustion because there are no longer any state remedies
that are available to him. Grass v. Reitz, 643 F.3d
579, 584 (8th Cir. 2011) (citing Coleman v.
Thompson, 501 U.S. 722, 732 (1991)). “However,
that petitioner's procedural default may constitute an
‘independent and adequate state ground' barring
federal habeas relief absent a showing of either cause and
prejudice or actual innocence.” Id. (internal
citations omitted). “[W]e ask not only whether a
prisoner has exhausted his state remedies, but also whether
he has properly exhausted those remedies,
i.e., whether he has fairly presented his claims to
the state courts.” O'Sullivan v. Boerckel,
526 U.S. 838, 848 (1999). To meet this fair presentation
requirement, “state prisoners must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review process.” Id. at
845. “A failure to exhaust remedies properly in
accordance with state procedure results in procedural default
of the prisoner's claims.” Welch v. Lund,
616 F.3d 756, 758 (8th Cir. 2010) (citing
O'Sullivan, 526 U.S. at 848).
failed to present any of his arguments for a complete round
of review by the state courts, so his claims are procedurally
defaulted. Even if it is assumed that he has established
cause for the defaults of his ineffective assistance claim,
Petitioner has failed to establish sufficient prejudice.
See Trevino v. Thaler, 133 S.Ct. 1911 (2013);
Martinez v. Ryan, 132 S.Ct. 1309 (2012); Sasser
v. Hobbs, 735 F.3d 833 (8th Cir. 2013). Lastly,
Petitioner's claims are without merit. The record
indicates that Petitioner had no promise or agreement as to
his punishment; that he was properly sentenced within the
statutory range; that he was not sentenced as a habitual
offender; that he was given a reduced sentence according to
the sentencing order; and that he was not convicted or
sentenced twice for the same offense in violation of double
jeopardy as he argues.
THEREFORE ORDERED that Petitioner's Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 2)
be, and it is hereby, dismissed, with prejudice. The relief
prayed for is DENIED. All pending motions are denied as moot.
Court will not issue a certificate of appealability because
Petitioner has not made a substantial showing of the denial
of a ...