Waugh v. Silas

          RECOMMENDED DISPOSITION

         I. Procedure for Filing Objections:

         This Recommended Disposition (Recommendation) has been sent to Judge James M. Moody Jr. Any party to this suit may file written objections with the Clerk of Court. To be considered, objections must be filed within 14 days. Objections should be specific and should include the factual or legal basis for the objection.

         If the parties do not file objections, they risk waiving the right to appeal questions of fact. And, if no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing the record.

         II. Background:

         Petitioner Wendy Waugh pleaded guilty to two felony drug charges in Independence County Circuit Court in 2016. The court sentenced Ms. Waugh to 60 months' probation and ordered her to complete the 16th Judicial District Drug Court Program (the Program). (#11-2) Ms. Waugh remains in the Program. (#11-7)

         Ms. Waugh has experienced some progress and some regression while in the Program. Her latest set-back occurred in September of 2018, when she admitted to drug use after testing positive for a controlled substance. (#11-5 at 2) Ms. Waugh's drug use in the fall of 2018 was her “third strike” while a participant in the Program, and the Independence County Circuit Court ordered her confined at the East Central Arkansas Community Correction Center (ECACCC) for 365 days of inpatient drug treatment as a sanction. (#11-5 at 1, #11-7 at 1-2, #11-8 at 2) This was an approved sanction under the Program handbook for a participant who had accrued three strikes. (#11-3 at 9-10) Ms. Waugh did not appeal the court's sanction.

         Gene Waugh, who identifies himself as Ms. Waugh's husband, signed the federal habeas petition on behalf of Ms. Waugh. (#1) The petition claims that the circuit court violated Ms. Waugh's due process rights when it sanctioned her, because she was not allowed to speak and was not represented by counsel at the hearing. (#1 at 8) The petition also raises claims of judicial bias and asserts that the 365-day sanction is unlawful. (#1 at 5-8)

         Phyllis Silas, the Center Supervisor at ECACCC, has responded to the petition, arguing that the Court lacks jurisdiction because Mr. Waugh lacks standing to file a petition as Ms. Waugh's “next friend.” (#11 at 5-7) Alternatively, the Respondent argues Ms. Waugh's claims are procedurally defaulted. (#11 at 7-10)

         III. Jurisdiction:

         A habeas application may be signed and verified “by someone acting in [the petitioner's] behalf.” 28 U.S.C. §2242. See also Rule 2 (c)(5) of the Rules Governing Section 2254 Cases. A next friend (the person filing on behalf of the real party in interest), however, has the burden of establishing standing. Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990).

         To have standing, a next friend must first “provide an adequate explanation-such as inaccessibility, mental incompetence, or other disability-why the real party in interest cannot appear on his [or her] own behalf to prosecute the action”; and “[s]econd, the ‘next friend' must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a ‘next friend' must have some significant relationship with the real party in interest.” Whitmore, 495 U.S. at 163 (citation omitted).

         In the petition filed in this case, Mr. Waugh explains simply that he is bringing the petition because, “I am Wendy Waugh's husband. She is incarcerated at East Central Community of Corrections.” (#1 at 15) Mr. Waugh does not assert that Ms. Waugh is unable to prosecute her own habeas petition due to incompetence or other disability. In fact, to be eligible to participate in the Program Ms. Waugh had to establish that she had “[n]o active mental health concerns that would adversely affect [her] ability to complete [the] program.” (#11-3 at 3)

         To the extent that Mr. Waugh argues that Ms. Waugh does not have access to legal materials to bring a habeas petition on her own behalf, his argument is not persuasive. Respondent Silas's affidavit provides that ECACCC residents have access to a law library as well as paper, writing instruments, stamps, and envelopes to assist them with drafting and filing pleadings. (#11-8 at 1-2)

         Even though Mr. Waugh may be Ms. Waugh's husband, there are several entries in her supervision records predating her in-patient treatment indicating that the two were separated; that Mr. Waugh had substance abuse problems; ...