United States District Court, W.D. Arkansas, El Dorado Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT, U.S. MAGISTRATE JUDGE
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.
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
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
ECF No. 8-3, p. 20.
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.
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.
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).
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.
THE INSTANT PETITION
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 1st 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 ...