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Harris v. Kelley

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

January 15, 2019

TYROME HARRIS, SR. PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          RECOMMENDED DISPOSITION

         The 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. By not objecting, you may waive the right to appeal questions of fact.

         I. Introduction

         Pending before the Court is a pro se § 2254 Petition for a Writ of Habeas Corpus filed by Petitioner, Tyrome Harris (“Harris”). Doc. 2. Before addressing Harris's habeas claims, the Court will review the procedural history of the case in state court.

         On February 8, 2016, Harris appeared, with counsel, in the Circuit Court of Pulaski County, Arkansas, and, entered a negotiated guilty plea to one count of battery in the first degree.[1] State of Arkansas v. Tyrome Harris, Sr, Pulaski County Circuit Court No. 60CR-14-3398.

         On March 7, 2016, Harris appeared, with counsel, for a sentencing hearing.[2]The trial court sentenced Harris to fifteen years' imprisonment, the same sentence recommended by probation, plus an additional five year suspended sentence. Id. at 28; Doc. 9-3, Tr. 2-3.

         By entering an unconditional plea, Harris waived the right to challenge his conviction on direct appeal.[3]

         On April 22, 2016, Harris filed a pro se Rule 37 petition for postconviction relief in the trial court. Doc. 9-3, Tr. 5-14. He alleged his plea-stage counsel, Mr. Simpson, was ineffective because: (1) he had a conflict of interest with the victim; (2) the plea agreement was for no enhancements or habitual offender status; (3) the jail-time credit was incorrect; and (4) he failed to advise Harris that, because of his prior convictions, he would not be eligible for parole. Id. at pp. 5-14.

         On October 20, 2016, the trial court entered an order denying Harris's Rule 37 petition. Id. at pp. 29-32. Harris appealed only one issue: Mr. Simpson's ineffectiveness in failing to advise him that, because his prior violent felony disqualified him from parole, he would be required to serve 100 percent of his sentence. See Ark. Code Ann. § 16-93-609.[4] Id. at 13-17; Doc. 9-4, pp. 16-17.

         On February 7, 2018, the Arkansas Court of Appeals affirmed the trial court's denial of post-conviction relief. Harris v. State, 2018 Ark.App. 94, 542 S.W.3d 895 (“Harris I”).

         On June 14, 2018, Harris initiated this federal habeas action. Doc. 2. Respondent, in her Response, argues that Harris's habeas claim should be denied on the merits. Doc. 9. Harris has filed a Reply. Doc. 12. Thus, the issues are joined and ready for decision.

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

         II. Discussion

         A. The Trial Court's Rejection of Harris's Ineffective Assistance Claim

         In his federal habeas Petition, Harris asserts one claim: Mr. Simpson provided constitutionally inadequate assistance of counsel by failing to advise him, before his guilty plea, that he would not be eligible for parole based on a prior violent felony conviction.[5] Doc. 2, p. 2.

         The trial court adjudicated this claim, on the merits, in Harris's Rule 37 proceeding:

Petitioner's final claim for relief states that counsel was ineffective for failing to inform Petitioner that he would be required to serve 100% of his sentence before becoming parole eligible. Petitioner further claims that he was led to believe he would only be required to serve 1/3 or 5 years of the sentence. Petitioner claims this omission rendered his plea involuntary. A review of the record from the sentencing hearing held March 7, 2016, conclusively shows that trial counsel explicitly stated twice on the record that Petitioner would have to serve his sentence day-for-day (Transcript p. 16) and that Petitioner ...

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