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Bell v. Kelley

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

June 29, 2018

MICHAEL BELL PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Corrections RESPONDENT

          RECOMMENDED DISPOSITION

         The 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.

         I. Background

         Pending 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.

         On December 5, 2005, a Union County, Arkansas, jury convicted Bell of various drug related offenses, [1] 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.

         Bell filed a direct appeal.[2] On January 23, 2008, the Arkansas Court of Appeals affirmed Bell's convictions and sentences.[3] Bell v. State, 101 Ark.App. 144 (2008).

         On November 24, 2008, Bell filed a pleading in the Union County Circuit Court entitled, “Motion for Writ of Habeas Corpus.”[4] 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.”[5] 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.

         The Union County Circuit Court failed to rule on Bell's Motion for Writ of Habeas Corpus.[6]

         On 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.[7] 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 18.

         On 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 court”;
Claim 2 - The prosecutor failed to disclose favorable evidence;
Claim 3 - The jury was “unconstitutionally selected and impaneled”; and
Claim 4 - His trial counsel was ineffective because he “was on probation” at the time of the trial.”

Doc. 2.

         On 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;[8] 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.

         For the reasons discussed below, the Court recommends that the Petition for a Writ of Habeas Corpus be denied, and the case dismissed, with prejudice.

         II. ...


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