Weaver v. Kelley

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT, U.S. MAGISTRATE JUDGE

         Petitioner, Desmond Weaver (“Weaver”), an inmate confined in the Arkansas Department of Correction (“ADC”), Ouachita River Unit, Malvern, Arkansas, filed a Petition for Writ of a Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 24, 2018. ECF No. 1. The Petition was referred for findings of fact, conclusions of law and recommendations for the disposition of the case. Director Wendy Kelly (“Respondent”), filed a Response on November 27, 2018 arguing the Petition should be dismissed. ECF No. 8. For the reasons set forth below, the Court recommends the Petition be dismissed.

         I. BACKGROUND

         On the evening of May 19, 2017, a dispute at Weaver's house in Magnolia ended when he fired a gun several times into an SUV with four people in it. ECF No. 8-3, pp. 6-7. One of the shots hit LaTaqua Cooper, who was severely injured and underwent surgery for her injuries. Id. at 7. On June 29, 2017, the State charged Weaver in Columbia County Circuit Court case CR-17-126, with four counts of attempted murder, one count of first-degree battery, and one count of being a felon in possession of a firearm. Id. at pp. 1-3. The State also indicated Weaver was a habitual offender subject to enhanced sentencing under Ark. Code Ann. § 5-4-501 (a) because he had at least two and as many as four previous felony convictions. Id. at p. 3. Weaver also had an older conviction for first-degree battery, but for reasons that are not apparent from the record, that conviction was invoked in the state proceedings at issue in this case.

         On September 7, 2017, Weaver entered an unconditional guilty plea in Columbia County Circuit Court. ECF No. 8-3, pp. 21-22. In exchange for his plea, the State agreed to nolle prosse the attempted murder counts and recommend a total sentence of 20 years followed by 20 years suspended imposition of sentence on the other two counts. Id. at pp. 21-22. Weaver also signed a guilty plea statement in which he acknowledged his plea waived his right to a jury trial, confrontation, and direct appeal, and collateral consequences would result from his plea. Id. at pp.19-20. Weaver also declared he understood the nature of the proceedings against him and was not under the influence of any mind-altering substances. Id. He indicated he was satisfied with his attorney's work on his behalf and stated:

I understand that neither my attorney nor the Court can say how much time I will serve on my sentence before being released. I state that I am not relying on any discussion or conjecture about potential parole eligibility in my decision to enter a plea of guilty[.] DW [Weaver's initials]

ECF No. 8-3, p. 20.

         In his plea colloquy before Columbia County Circuit Judge David Talley, Weaver acknowledged he had signed the guilty plea statement and affirmed he understood everything in it. ECF No. 8-4, at p. 4. He confirmed he was not under the influence and his plea was not the result of threats or abuse. Id. At the change of plea hearing, the State provided a factual basis for the pleas of guilty - namely, that Weaver “fired into a vehicle with a firearm, that struck LaTaqua Cooper causing serious physical injury to her[, ]” and further, Weaver had previous felony convictions for commercial burglary and domestic battery. Id. at pp. 5-6. Weaver confirmed the accuracy of the State's factual basis on the record. Id. at 6.

         The Court then accepted the plea and sentenced Weaver to consecutive two 10-year sentences followed by 20 years suspended imposition of sentence on each count. ECF No. 8-4 at p. 6. The Court asked Weaver if he had any questions. Weaver then asked why the sentence was 20 years. The court replied that the plea agreement Weaver had signed “recommended a twenty-year sentence, so I gave you ten years on each count, so I had to run them consecutively to say ten plus ten equal to twenty [years.]” Id. at pp. 6-8. A sentencing order reflecting Weaver's conviction and sentence was filed of record on September 15, 2017. ECF No. 8-3, p. 26.

         Weaver entered the ADC on September 19, 2017. ECF No. 8-5, p. 10. The ADC determined Weaver was ineligible for parole as to his 2017 first-degree battery conviction because he had a previous conviction for a violent felony - first-degree battery. Id. at p. 4 (noting Weaver “is under Act 1805 due to a previous conviction of Battery I on docket #2008-179 and current conviction of Battery I (120 Months), ” and consequently he “must serve 100% and earn no good time.”); see also ECF No. 8-6 (judgment and commitment order for Weaver's July 2, 2009, conviction in Columbia County state circuit court No. CR 2008-179, for first- degree battery).

         On March 5, 2018, Weaver filed a pro se petition for declaratory judgment in the state circuit court challenging the ADC's parole eligibility determination. ECF No. 8-3, pp. 35-51. Weaver argued the determination violated “fundamental fairness” because the Legislature's designation of first-degree battery as a violent felony was invalid and Act 1805 was invalid for lack of notice. Id. However, the petition for declaratory judgment did not challenge the validity of Weaver's plea or claim that his plea counsel was ineffective. On April 25, 2018, the state circuit court issued a summary denial of Weaver's petition. Id. at p. 58. Weaver did not appeal this ruling.^[1]

         II. THE INSTANT PETITION

         Petitioner is in Respondent's custody serving concurrent sentences totaling two-hundred forty (240) months for first-degree battery and being a felon in possession of a firearm. Weaver makes one claim in the Petition, ineffective assistance of trial counsel. He specifically alleges:

I was not informed during the plea negotiations of how much time I would have to serve on my sentence…On Sept. 7, 2017, Petitioner plead guilty to 1^st degree battery and possession of a fire arm by a certain person, and was sentenced to 240 months on each running consecutively. In a letter from my defense attorney Mr. Andrew W. Best, dated Jan. 17, 2018, he apologized for not ...