United States District Court, W.D. Arkansas, El Dorado Division
ORDER
Susan
O. Hickey, Chief United States District Judge.
Before
the Court is the Report and Recommendation filed April 24,
2019, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 9). Petitioner Desmond Weaver filed timely objections.
(ECF No. 10). The Court finds the matter ripe for
consideration.
I.
BACKGROUND
On June
29, 2017, Petitioner was charged in Columbia County Circuit
Court with four counts of attempted murder, one count of
first-degree battery, and one count of being a felon in
possession of a firearm. On September 7, 2017, Petitioner
pleaded guilty to the counts of first-degree battery and
felon in possession of a firearm and the State of Arkansas
agreed to nolle prosse the four counts of attempted
murder. The state court accepted Petitioner's guilty plea
on the two charges and sentenced him to a ten-year sentence
on each charge, running consecutively for a total of twenty
years. Petitioner did not file a petition for post-conviction
relief from his unconditional guilty plea under Arkansas Rule
of Criminal Procedure 37.
Petitioner
was incarcerated in the Arkansas Department of Correction
(“ADC”), which subsequently determined he was
ineligible for parole as to his first-degree battery
conviction because he had a previous conviction for a violent
felony. Thus, Petitioner was told that he must serve the
entirety of his sentence.
On
March 5, 2018, Petitioner filed a petition for declaratory
judgment in state court, challenging the ADC's parole
eligibility determination on the basis that it violated his
due process rights. On April 25, 2018, the state circuit
court denied that petition. Petitioner did not appeal this
ruling.
On July
24, 2018, Petitioner filed the instant petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
(ECF No. 1). His habeas petition is based on the
argument that he received ineffective assistance of counsel
in connection with his guilty pleas because his attorney did
not advise him that he would not be eligible for parole due
to the application of Arkansas law to prior violent
offenders.[1]
On
April 24, 2019, Judge Bryant issued the instant Report and
Recommendation. Judge Bryant recommends that the Court deny
and dismiss with prejudice the petition for writ of
habeas corpus. Specifically, Judge Bryant finds that
the Petitioner's habeas claim of ineffective
assistance of counsel is procedurally defaulted because he
did not file a petition for post-conviction relief from his
unconditional guilty plea under Arkansas Rule of Criminal
Procedure 37. Judge Bryant alternatively finds that
Petitioner's claim fails on the merits because he failed
to satisfy either prong of the test for ineffective
assistance of counsel established by Strickland v.
Washington.[2] Judge Bryant noted further that
Petitioner's claim is belied by his signed plea agreement
and the plea colloquy he engaged in with the state circuit
court, in which he affirmed that he understood that his total
sentence would be twenty years and that he was not relying on
any discussion or conjecture about potential parole
eligibility in deciding to plead guilty. Finally, Judge
Bryant recommends that no certificate of appealability issue
in this matter. On May 14, 2018, Petitioner filed objections
to the Report and Recommendation.
II.
DISCUSSION
Pursuant
to 28 U.S.C. §646(b)(1), the Court will conduct a de
novo review of all issues related to Petitioner's
specific objections. The objections reiterate
Petitioner's belief that he had a right to know that he
would be ineligible for parole. The objections also appear to
allege that the ADC improperly enhanced his sentence based on
prior felony convictions. These objections are unresponsive
to the findings made in Judge Bryant's Report and
Recommendation.
To the
extent that these objections are responsive and specific
enough to trigger de novo review, and assuming
arguendo that Petitioner's claims are not
procedurally defaulted, the Court finds Judge Bryant's
analysis to be dispositive of these arguments. “A
defendant's reliance on an attorney's mistaken
impression about the length of sentence is insufficient to
render a plea involuntary as long as the court informed the
defendant of his maximum possible sentence.” United
States v. Quiroga, 544 F.3d 1150, 1155 (8th Cir. 2009).
In this case, Petitioner's plea agreement indicated that
the prosecution would recommend a twenty-year sentence (ECF
No. 8-3, p. 22) and the state court informed Petitioner
during the plea colloquy that he would be sentenced to a
total of twenty years. (ECF No. 8-4, p. 6). Thus,
Petitioner's signed plea agreement and the state court
both indicated to Petitioner his maximum total sentence.
Moreover, even assuming arguendo that
Petitioner's attorney erroneously informed him of the
possible maximum length of his sentence, the signed plea
agreement-which Petitioner swore under oath that he had
reviewed with his attorney and understood-represents that
Petitioner understood that neither his attorney nor the court
could say how much time he would serve on his sentence and
that he was not relying on any discussion or conjecture about
potential parole eligibility in pleading guilty. (ECF No.
8-3, p. 20). Thus, the Court is unpersuaded by
Petitioner's first argument.
As for
Petitioner's second argument that seemingly alleges that
the ADC improperly enhanced his sentence, Judge Bryant
correctly noted that, under Arkansas law, an inmate who is
convicted of a violent felony offense after August 13, 2001,
and who was previously found guilty of a violent felony
offense, is not eligible for parole on his sentence. Ark.
Code Ann. § 16-93-609(b)(1). Petitioner's
first-degree battery offense is considered a violent felony
offense for purposes of this statute. Ark. Code Ann. §
5-4-501(d)(2)(A)(vi). Petitioner's current sentence is
based, in part, on a first-degree battery offense and he was
previously found guilty of a violent felony offense, a
separate, unrelated first-degree battery felony charge in
2009. (ECF No. 8-6). Thus, pursuant to Arkansas law, he is
ineligible for parole and the Court finds that his sentence
was not improperly enhanced.
Therefore,
the Court finds that Petitioner's objections offer
neither law nor fact which would cause the Court to deviate
from Judge Bryant's Report and Recommendation. Petitioner
did not object to Judge Bryant's finding that his
habeas claim is procedurally defaulted, nor did he
object to Judge Bryant's finding that the habeas
claim fails on the merits because he has not satisfied the
Strickland test to demonstrate ineffective
assistance of counsel. Petitioner also does not object to
Judge Bryant's recommendation that no certificate of
appealability should issue in this case, and the Court finds
that recommendation to be correct. See Khaimov v.
Crist, 297 F.3d 783, 786 (8th Cir. 2002) (holding that
no certificate of appealability shall issue after denial of a
section 2254 petition “if the claim is clearly
procedurally defaulted . . . [or] if there is no merit to the
substantive constitutional claims”). Accordingly, the
Court sees no reason to depart from Judge Bryant's
findings.
III.
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