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