United States District Court, E.D. Arkansas, Western Division
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge D. P. Marshall, 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 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.
October 11, 2018, Jackie Howard (“Howard”),
proceeding pro se, filed a nine-page document, which
was treated as a 28 U.S.C. § 2254 Petition for Writ of
Habeas Corpus (“Petition”). Doc. 1.
complains that his rights were violated when his probation
was revoked in a criminal proceeding in Miller County Circuit
Court. Howard states that he is “filing an
appeal” of the state court's ruling through his
state court assigned public defender. Doc. 2 at 3.
Howard may not pursue federal habeas relief while
simultaneously appealing his probation revocation and
sentence through Arkansas's state court appellate system,
the Court recommends that Howard's Petition for Writ of
Habeas Corpus be dismissed.
reviewing a federal habeas petition, a court must summarily
deny relief “if it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief.” Rule 4 of the Rules Governing § 2254
Cases in the United States District Courts (applicable to
§ 2241 petitions under Rule 1(b)); 28 U.S.C. §
2243. Additionally, a court “may take judicial notice
of proceedings in other courts of record.” Rodic v.
Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th
Court, after reviewing Howard's pro se filing
and accessing publicly available documents from Miller County
Circuit Court, takes judicial notice that: (1) on October 2,
2018, a revocation hearing was conducted in State of
Arkansas v. Jackie Howard, Miller County Circuit Court
Case No. 46Cr-17-229-2; and (2) during the hearing, Howard
was found guilty of violating the conditions of his probation
and sentenced to six years in the Arkansas Department of
Correction. While Howard states in his Petition that he
intends to appeal his sentence, as of the date of this Order,
no Notice of Appeal has been filed.
a state prisoner can seek federal habeas relief, he
ordinarily must “exhaust[t] the remedies available in
the courts of the State.” 28 U.S.C. §
2254(b)(1)(A), thereby affording those courts “the
first opportunity to review [a federal constitutional] claim
and provide any necessary relief” for alleged
violations of a prisoner's federal constitutional rights.
O'Sullivan v. Boerckel, 526 U.S. 838, 844-45
(1999). State remedies are not exhausted if a petitioner
“has the right under the law of the State to raise, by
any available procedure, the question presented.” 28
U.S.C. § 2254(c). State prisoners must “give the
state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process.”
O'Sullivan, 526 U.S. at 845. Thus, before
seeking federal habeas relief for any alleged violations of
his federal constitutional rights, Howard must raise those
claims before the state appellate court, so it has an
opportunity to resolve them.
own admission, Howard has not exhausted currently available
state court remedies in connection with his probation
revocation and sentence. Accordingly, Howard's claims
should be dismissed, without prejudice, for failure to
Howard has fully exhausted his remedies, at every level of
the state court system, he can properly initiate a §
2254 habeas action in federal court.
THEREFORE RECOMMENDED, SUA SPONTE, THAT Petitioner
Jackie Howard's Motion for Writ of Habeas Corpus pursuant
to § 2254, Doc. No. 1, be dismissed, without
FURTHER RECOMMENDED that a Certificate of Appealability be
DENIED. See 28 U.S.C. § 2253(c)(1)-(2); Rule
11(a), Rules Governing § ...