Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wilson v. Kelley

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

July 27, 2018

TIMOTHY WILSON PETITIONER
v.
WENDY KELLY, Director, Arkansas Department of Correction RESPONDENT

          FINDINGS AND RECOMMENDATIONS

         INSTRUCTIONS

         The 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.

         DISPOSITION

         Petitioner 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.

         Wilson 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.

         In his 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 eligibility.

         Kelley 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.

         Procedural Default Analysis

         In 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).

         With 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.

         Liberally 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.