United States District Court, E.D. Arkansas, Pine Bluff Division
following Recommended Disposition
(“Recommendation”) 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 within fourteen (14) days
of the entry of this Recommendation. The failure to timely
file objections may result in waiver of the right to appeal
questions of fact.
before the Court is a § 2254 Petition for a Writ of
Habeas Corpus filed by Petitioner, Michael Bell
(“Bell”). Doc. 2. Before addressing
Bell's habeas claims, the Court will review the
procedural history of the case in state court.
December 5, 2005, a Union County, Arkansas, jury convicted
Bell of various drug related offenses,  set terms of
imprisonment, and recommended the terms be imposed
consecutively. Doc. 11-2, Tr. 50-61. The trial court
accepted the jury's recommendation and imposed an
aggregate sentence of 73 months imprisonment. Id.
filed a direct appeal. On January 23, 2008, the Arkansas Court of
Appeals affirmed Bell's convictions and
sentences. Bell v. State, 101 Ark.App. 144
November 24, 2008, Bell filed a pleading in the Union County
Circuit Court entitled, “Motion for Writ of Habeas
Corpus.” Doc. 11-6 at 1, 4. Bell argued
that: (1) his trial counsel, Don G. Gillaspie
(“Gillaspie”), was placed on “supervised
probation” by the Arkansas Supreme Court Committee on
Professional Conduct before Bell's trial; and (2)
Gillaspie failed to comply with the Committee's directive
to “associate co-counsel.” According to
Bell, this deprived the trial court of jurisdiction to
proceed with his trial. Id. at 2. Bell also
contended that Gillaspie provided ineffective assistance of
counsel by failing to: (1) preserve issues for appeal; and
(2) adequately challenge the credibility of States'
witnesses, Charles Robinson and Ravonda Payton. Finally, Bell
alleged that the State knowingly presented false testimony
through those two witnesses.
Union County Circuit Court failed to rule on Bell's
Motion for Writ of Habeas Corpus.
February 2, 2009, Bell filed a § 2254 habeas Petition in
the Eastern District of Arkansas. Bell v. Norris,
No. 5:09-cv-00033-SWW (“Bell's first federal habeas
case”). On August 25, 2009, the United States
Magistrate Judge assigned to the case recommended that the
Petition be dismissed because the state trial court had not
yet ruled on Bell's pending Motion for Writ of Habeas
Corpus. The United States District Judge later
adopted the recommendation and dismissed Bell's first
federal habeas case, without prejudice. Bell v.
Norris, E.D. Ark. No. 5:09-cv-00033-SWW, Docs 17 and
September 7, 2017, Bell filed this § 2254 habeas action,
in which he asserts the following claims:
Claim 1 - The evidence used against him at trial was seized
from an unconstitutional search because “[t]he search
warrant was not filed with the record of the circuit
Claim 2 - The prosecutor failed to disclose favorable
Claim 3 - The jury was “unconstitutionally selected and
Claim 4 - His trial counsel was ineffective because he
“was on probation” at the time of the
November 9, 2017, Respondent filed a Response requesting the
dismissal of the case because: (1) all of Bell's claims
are conclusory and without factual or legal support; (2) the
Fourth Amendment claim is barred by Stone v
Powell; and (3) all remaining claims are
procedurally barred from federal review because Bell failed
to first seek timely review of them in state court. Doc.
11. Bell was given an opportunity to file a Reply Brief,
but failed to do so. Doc. 13. Thus, the issues are
joined and ripe for decision.
reasons discussed below, the Court recommends that the
Petition for a Writ of Habeas Corpus be denied, and the case
dismissed, with prejudice.