United States District Court, E.D. Arkansas, Pine Bluff Division
FINDINGS AND RECOMMENDATIONS
following recommended disposition has been sent to United
States District Judge James M. Moody, Jr. 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.
Timothy Wilson (“Wilson”) seeks a writ of
habeas corpus pursuant to 28 U.S.C. §2254.
Respondent Wendy Kelley (“Kelley”) has submitted
her response to Wilson's application, and Wilson has, at
the invitation of the Court, countered Kelley's response.
is currently in the custody of the Arkansas Department of
Correction (ADC) following his 2017 guilty plea and
conviction in the Washington County Circuit Court on the
charge of rape. Wilson was sentenced to a total of 15
years' imprisonment. Having entered a guilty plea, no
direct appeal was available. Wilson did not file a Rule 37
petition for postconviction relief with the trial court.
federal habeas corpus petition, Wilson claims he received
ineffective assistance of counsel in the following ways:
(1) he pleaded guilty after his attorney lead him to believe
that his case was set for trial in just a matter of days;
(2) his trial attorney failed to reasonably and adequately
investigate the case; and
(3) his trial attorney misinformed him about parole
contends that all of Wilson's claims are procedurally
barred in this Court due to his failure to adequately pursue
these claims in state court, as required by Wainwright v.
Sykes, 433 U.S. 72 (1977), and its progeny.
Specifically, Kelley cites Wilson's failure to raise the
claims in a Rule 37 proceeding in state court. By prior Court
Order, Wilson was notified of his opportunity to respond to
Kelley's procedural default argument, and he has done so.
Docket entry no. 8.
Wainwright v. Sykes, supra, the United States
Supreme Court held 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, also, Clark v.
Wood, 823 F.2d l24l, l250-5l (8th Cir. l987);
Messimer v. Lockhart, 822 F.2d 43, 45 (8th Cir.
l987). The Wainwright v. Sykes cause and prejudice
test was clarified by two subsequent Supreme Court decisions,
Smith v. Murray, 477 U.S. 527 (l986), and Murray
v. Carrier, 477 U.S. 478 (l986).
respect to cause, these cases explain that the Court has
"declined in the past to essay a comprehensive catalog
of the circumstances that [will] justify a finding of
cause." Smith v. Murray, 477 U.S. 533-34.
However, one can discern from these cases several
circumstances in which cause might be found: first, where
some objective factor external to the defense impeded
counsel's efforts to comply with the State's
procedural rules, see Murray v. Carrier, 477 U.S. at
488; second, where a constitutional claim is so novel that
its legal basis is not reasonably available to counsel,
see Reed v. Ross, 468 U.S. l (l984); or third, if
the litigant failed to receive the effective assistance of
counsel. See Murray v. Carrier, 477 U.S. at 488. In
addition, there is one extraordinary circumstance where a
federal habeas court may grant relief without a showing of
cause: where a constitutional violation has probably resulted
in the conviction of one who is actually innocent.
Id. at 496.
construing Wilson's response to Kelley's arguments,
he contends there was an external impediment which prevented
him from raising his claims in state court, and ineffective
assistance of counsel also resulted in his failure to allow