United States District Court, E.D. Arkansas, Pine Bluff Division
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge Brian S. Miller. 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.
Kenneth White (“White”), an inmate in the custody
of the Arkansas Department of Correction, filed a pro
se 28 U.S.C. § 2254 Petition for a Writ of Habeas
Corpus, and a Brief in Support, alleging that he is now being
wrongfully incarcerated within the ADC after the expiration
of his sentence. Docs. 1-3. In screening the
Petition, the Court ordered White to show cause why his
habeas Petition should not be dismissed, without prejudice,
for failure to exhaust his state-court remedies.
Doc. 4. White has filed an Answer to the Show Cause
Order. Doc. 5. For the following reasons, the Court
recommends dismissing the habeas Petition, without prejudice.
Answer to the Show Cause Order, White states that he
“believes that he has tried to exhaust his available
state remedies by writing grievances and writing”
numerous ADC officials, state circuit court clerks, and
Governor Hutchinson. Doc 5, p. 2. The documents
White seeks to rely on in no way are sufficient to establish
that he has exhausted his available state court remedies.
Court explained in the Show Cause Order, the State of
Arkansas has specific statutory remedies that allow a state
prisoner to challenge the computation of his sentence.
Doc. 4, p. 3. Those statutory remedies
require White to file, in state court, a
“petition for declaratory judgment and writ of
mandamus, ” which challenges the computation of his
sentence. This petition must be filed by White in Jefferson
County Circuit Court, against “Wendy Kelley, Director,
Arkansas Department of Correction, ” and the ADC
“keeper of the records” that calculated his
sentence. Houston v. State, No. CR 02-1333, 2003 WL
1950248, at *1 (Ark. Apr. 24, 2003) (citing Wiggins v.
State, 299 Ark. 180, 771 S.W.2d 759 (1989)). If the
Jefferson County Circuit Court does not grant White relief on
his “petition for declaratory relief and writ of
mandamus” challenging the computation of his sentence,
he must then appeal to the Arkansas Supreme Court. Only after
exhausting these available state court remedies, can White
properly initiate a federal habeas action.
also claims that he “refused to file a Habeas
Corpus in the Arkansas Supreme Court ... in fear that
the court would prolong his hearing past his unlawful
discharge date, December 22, 2018.”  Doc. 5, p.
4. A petitioner is not allowed to bypass the exhaustion
requirement in anticipation that his efforts in
state court may be futile. White's subjective fears do
not excuse his failure to exhaust or render the state remedy
remaining arguments relate to the merits of his claim.
Doc. 5, pp. 2-4. Because he has failed to exhaust
his state court remedies, the Court will not address them at
this time. 
THEREFORE RECOMMENDED THAT White's 28 U.S.C. § 2254
Petition for a Writ of Habeas Corpus be DISMISSED, without
 As explained in the Show Cause Order,
a habeas petitioner must exhaust his available state-court
remedies before he can properly initiate a federal
habeas action. 28 U.S.C. § 2254(b)(1)(A). A federal
court, in screening a habeas action, is permitted to raise
the issue of exhaustion, sua sponte. McCartney
v. Vitek, 902 F.2d 616, 617 (8th Cir. 1990).
 White previously filed a state habeas
action in Hot Spring County. White v. Kelley, Hot
Spring County Circuit Court No. 30CV-17-462 (May 1, 2018).
That case was dismissed, and he filed a notice of appeal.
White appears to have abandoned that action out of fear that
any relief would come too late. However, as explained above,
no relief is available to him in Hot Spring County and
appealing that case to the Arkansas Supreme Court is not the
appropriate action to take in challenging his sentence
 This Order is not a determination on
the merits of White's federal habeas claims. Thus, if
White properly exhausts his state court remedies and then
elects to file a habeas action challenging the computation of
his sentence, it will not constitute a successive petition.
Burton v. Stewart, 549 U.S 147 (2007) (A habeas
petition filed after an initial petition is dismissed without
adjudication on ...