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Aikens v. Kelly

United States District Court, E.D. Arkansas, Pine Bluff Division

June 4, 2018

ALVIN DEJUAN AIKENS, ADC #160951 PETITIONER
v.
WENDY KELLEY, [1] Director, Arkansas Department of Correction RESPONDENT

          RECOMMENDED DISPOSITION

         I. Procedure for Filing Objections:

         This Recommended Disposition (“Recommendation”) has been sent to Judge James Moody Jr. Any party to this suit may file written objections with the Clerk of Court within 14 days of the filing of the Recommendation. Objections should be specific and should include the factual or legal basis for the objection.

         By not objecting, any right to appeal questions of fact may be jeopardized. And, if no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing the record.

         II. Background:

         A. Procedural History

         In March 2015, Petitioner Alvin Aikens pleaded guilty in the Circuit Court of Pulaski County, Arkansas, to criminal counts charged in nine separate cases, [2] including: simultaneous possession of drugs and firearms, possession of a controlled substance, theft by receiving, attempted residential burglary, aggravated assault on a law enforcement officer, terroristic threatening, residential burglary, theft of property, and aggravated robbery.[3] (Docket entry #8-2 - #8-10, #8-25) Mr. Aikens was sentenced on May 15, 2015, and, because the sentences were ordered to run concurrently, he was given an aggregate sentence of 40 years' imprisonment in the Arkansas Department of Correction (“ADC”). (#8-2 - #8-10, #8-26)

         Two weeks after sentencing, Mr. Aikens unsuccessfully attempted to withdraw his pleas in eight of the nine cases.[4] In case number 60CR-11-1087, however, Mr. Aikens neither moved to withdraw his plea nor sought any type of post-conviction relief. (#8-13) In contrast, in the remaining eight cases, Mr. Aikens attempted to appeal his conviction (#8-12) and later sought collateral relief under Arkansas Rule Criminal Procedure 37. (#8-15)

         By letter dated August 11, 2015 from the Clerk of the Arkansas Supreme Court, Mr. Aikens was informed that, because he had pleaded guilty, his convictions were not appealable and that, as a result, the Clerk had declined to lodge the record for his direct appeals. (#8-14)

         On June 29, 2015, before the Arkansas Supreme Court had rejected the direct appeal in the one case, Mr. Aikens petitioned for post-conviction relief in the eight other cases. (#8-15) His petitions were denied by order entered on November 12, 2015. (#8-17) Mr. Aikens appealed the denial of his Rule 37 petitions; however, the Arkansas Supreme Court dismissed the appeals on the State's motion after Mr. Aikens failed to timely file his appellate brief. Aikens v. State, CR 16-188 (Ark. S.Ct. Nov. 3, 2016) (per curiam) (#8-24).[5]

         B. Current Petition

         Mr. Aikens initiated the instant federal habeas petition on November 6, 2017. (#2) In his petition, he claims: the State breached its plea agreement; he was denied an independent competency evaluation; in cases 60CR-12-232 and 60CR-13-1339, his trial counsel failed to pursue a duress defense; and, finally, the trial judge illegally met with Mr. Aikens's mother and a family friend where the judge suggested that if Mr. Aikens pleaded guilty, he would “spare me on my time.” (#2).

         In her response to the petition, Respondent Kelley contends that Mr. Aikens has failed to articulate which of the nine criminal judgments he is challenging; this Court lacks jurisdiction to grant habeas relief because Mr. Aikens is no longer in custody on some on his convictions; and Mr. Aikens's claims are barred by the applicable statute of limitations, procedurally defaulted, and meritless, in any event.

         III. Discussion:

         The instant Petition is untimely.[6] The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year limitations period for a state prisoner to file a federal habeas corpus petition under 28 U.S.C. § 2254. 28 U.S.C. § 2244(d)(1). The statutory period begins to run on “the date on which the judgment became final by the conclusion of ...


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