United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATION
following recommended disposition has been sent to United
States District Judge Susan Webber Wright. 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 Clerk within fourteen
(14) days of this Recommendation. By not objecting, you may
waive the right to appeal questions of fact.
Jelani McCowan (“McCowan”) seeks a writ of habeas
corpus pursuant to 28 U.S.C. §2254. McCowan is currently
in the custody of the Arkansas Department of Correction (ADC)
after pleading nolo contendere in the Circuit Court
of Hempstead County to numerous charges in No.
CR-16-47. According to the Sentencing Order, all of
the offenses occurred on March 4, 2016. He was sentenced to a
total of 240 months' imprisonment. The trial court cited
aggravating circumstances in arriving at the sentence.
Namely, McCowan was on probation or parole at the time of the
crimes, he had persistent involvement in similar criminal
offenses, and multiple sentences were being imposed. Docket
entry no. 20-2, page 7-8. McCowan also pled nolo
contendere and was sentenced on the same date,
November 18, 2016, in two additional drug cases, Nos.
CR-16-225 and CR-16-228. This habeas petition challenges only
the convictions stemming from CR-16-47.
he pleaded nolo contendere, McCowan had no right to
a direct appeal of the convictions in CR-16-47. In his
federal habeas corpus petition, McCowan claims that he filed
a Rule 37 petition claiming ineffective assistance of
counsel, which was denied. He has not provided any
documentation to support that he filed a Rule 37 petition in
CR-16-47, and respondent Wendy Kelley (“Kelley”)
reports finding no evidence of such a filing. Kelley found
instead that McCowan filed a Rule 37 challenge, albeit
untimely, in CR-16-225 and CR-16-228.
did seek state habeas corpus relief in CR-16-47 in the
Jefferson County Circuit Court, filing a habeas petition and
motion to proceed in forma pauperis. The circuit
court, in an August 2017 order, denied the motion to proceed
in forma pauperis, finding McCowan failed to allege
facts indicating a “colorable cause of action.”
Docket entry no. 1, page 22. McCowan filed a notice of appeal
to the Arkansas Supreme Court on September 15, 2017. Docket
entry no. 20-6. Despite McCowan's assertion that this
petition is still pending, he offers no evidence the case has
been properly lodged with the appellate court, and Kelley
asserts no appeal is pending.
federal habeas corpus petition, McCowan alleges he received
ineffective assistance of counsel in violation of the
4th and 14th Amendments. Specifically,
he contends his attorney failed to seek suppression of
evidence obtained pursuant to an illegal search. Kelley
argues that the petition should be dismissed for several
reasons, including that it is procedurally barred due to
McCowan's failure to adequately raise the claim in state
basic concept of procedural default is that a federal court
should not reach the merits of a litigant's habeas corpus
allegation if he has procedurally defaulted in raising that
claim in state court: that is, if he was aware of the ground,
but failed to pursue it to a final determination. The
exception created by the Supreme Court permits such an
allegation to be addressed if the litigant can establish
"cause" for his failure to assert the known ground
and "prejudice" resulting from that failure.
See Clark v. Wood, 823 F.2d l24l, l250-5l (8th Cir.
l987); Messimer v. Lockhart, 822 F.2d 43, 45 (8th
mindful that Martinez v. Ryan, 566 U.S. 1 (2012),
and subsequent cases demonstrate there are exceptions to the
general rule of procedural default. We are also aware that
the procedural bar analysis need not be performed in every
case and are guided by the following language of the Eighth
Circuit Court of Appeals:
In cases such as this, it might well be easier and more
efficient to reach the merits than to go through the studied
process required by the procedural default doctrine. Recent
commentary points up the problems with the cause and
[T]he decision tree for habeas review of defaulted claims is
intricate and costly. . . . In essence, Sykes and
Strickland require habeas lawyers and federal judges
and magistrates to work through the equivalent of a law
school exam every time a defendant tries to escape procedural
McKinnon v. Lockhart, 921 F.2d 830, 833 n.7 (8th
Cir. 1990) (quoting Jeffries & Stuntz,
Ineffective Assistance and Procedural Default in
Federal Habeas Corpus, 57 U.Chi.L.Rev. 679, 690 (1990)).
See also Williams v. Norris, 612 F.3d 941, 953
(8th Cir. 2010). In this instance, we find it
wiser and a better use of judicial resources to forego the
procedural default analysis and address the merits of
McCowan's claim for relief.
argues that the petition should be dismissed due to
McCowan's failure to provide an adequate factual basis
for awarding relief. Kelley is correct in this regard.
McCowan alleges only that his attorney failed to file a
motion to suppress evidence. He does not suggest why his
attorney should have filed the motion, why the motion would
have been successful, or exactly how this would have changed
the course of his case. In order to prove ineffective
assistance of counsel, a petitioner has the burden of proving
(1) his attorney's actions were unreasonable when viewed
in the totality of the circumstances; and (2) he was
prejudiced because there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the trial would have been different. Strickland v.
Washington, 466 U.S. 688 (l983); Ryder v.
Morris, 752 F.2d 327, 33l (8th Cir. l985). The second
prong of the Strickland test is altered when a
claimant has pled to the charges rather than gone to trial.
The question in such an instance becomes whether it is
reasonably probable that, but for the attorney's acts or
omissions, the claimant would not have entered his plea and
would have insisted on going to trial. Hill v.
Lockhart, 474 U.S. 52, 59 (1985). McCowan does not plead
that he would have insisted on going to trial except for his
attorney's conduct. Thus, he fails to state even the
basics to support his claim for relief. There is an absence
of any “factual underpinning” for McCowan's
claim, and we recommend the petition be dismissed due to this
deficiency. McFarland v. Scott, 512 U.S. 849, 860
also maintains McCowan's petition should be dismissed
because his challenge to the his attorney's efficacy was
waived by his pleas of nolo contendere. A guilty
plea is “an admission of guilt that waives all
non-jurisdictional defects.” See United States v.
Limley, 510 F.3d 825, 827 (8th Cir. 2007).
“Stated differently, a valid guilty plea forecloses an
attack on a conviction unless on the face of the record the
court had no power to enter the conviction or impose the
sentence.” See Walker v. United States, 115
F.3d 603, 604 (8th Cir. 1997) [internal quotations
omitted]. A plea of nolo contendere is viewed
likewise, that is, ...