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Crowell v. Kelley

United States District Court, W.D. Arkansas, Fort Smith Division

June 20, 2019

LESLIE ANNA CROWELL ADC # 715194 PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed on September 27, 2018 by Petitioner, Leslie Anna Crowell (“Crowell”). (ECF No. 1). The Petition was initially filed in the United States District Court for the Eastern District of Arkansas, and the case was transferred to the Western District of Arkansas on December 10, 2018. (ECF No. 6). A response was filed by Respondent on March 28, 2019. (ECF No. 13). Crowell filed a reply on April 26, 2019. (ECF No. 14). The matter is ready for Report and Recommendation.

         I. Background

         Crowell was charged in the Circuit Court of Sebastian County, Arkansas with Delivery of Hydromorphone, in violation of A.C.A. § 5-64-426(c)(1), and maintaining a drug premises within 1, 000 feet of a church, in violation of A.C.A. § 5-64-402(a)(2) & (b)(2), arising from events that occurred on October 25, 2016. (ECF No. 13-2). A jury found Crowell guilty of both offenses, and on June 29, 2017 she was sentenced to a concurrent term of 10 years in the Arkansas Department of Correction. (Id.).

         Crowell appealed her conviction to the Arkansas Court of Appeals. Her appellate counsel filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967). (ECF No. 13-3). Crowell submitted her pro se points for reversal on March 13, 2018. (ECF No. 13-4). She asserted that her first plea offer was two years with eight years suspended, but her counsel “informed me he wanted to take it to trial”; that “I had a good chance of winning my case”; that “[h]e told me I shouldn't have to do any prison time”; that she was “never informed of the extensive sentence I would receive if I took it to trial”; that “[m]y attorney said the most I would have to do was 18 months”; and, “[t]hat is the only reason I agreed to go to trial.” (Id., pp. 1-2). She admitted “I committed the delivery charge and I am willing to accept my consequences for the actions I have made, ” but she argued a sentence of 10 years was unreasonable. (Id., p. 2). The Arkansas Court of Appeals affirmed Crowell's conviction in an opinion delivered on August 19, 2018. Crowell v. State, 2018 Ark.App. 386, 2018 WL 4101667. The Court of Appeals concluded that Crowell's pro se points either were not preserved for appellate review or did not support reversal.

         Crowell did not file a petition for post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure in the trial court.

         Crowell filed the instant Petition under § 2254 on September 27, 2018. (ECF No. 1). She alleges four grounds for relief:

(1) she was never offered a plea nor sentenced as a first-time offender (ECF No. 1, pp. 5-6);
(2) ineffective assistance of counsel for failing to inform her of her rights as a first-time offender; for persuading her not to accept a plea offer and take the case to trial, while assuring her that she would only do 18 months if any time at all; and, failing to raise an objection during trial to evidence of her personal life (Id., pp. 6-8);
(3) violation of her privacy rights when an informant entered her home and video and audio recorded the drug transaction that occurred in the home (Id., pp. 8-9); and,
(4) illegal arrest, because she wasn't involved in the drug transaction (Id., pp. 9-10).

         II. Discussion

         An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall be entertained only on the ground that the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Before seeking federal habeas review, a state prisoner must exhaust available state remedies, giving the state the opportunity to correct alleged violations of prisoners' federal rights, “which means he must ‘fairly present' his claim in each appropriate state court to alert that court to the claim's federal nature.” Baldwin v. Reese, 541 U.S. 27, 29 (2004); 28 U.S.C. §§ 2254(b) and (c) (requiring state prisoner seeking federal habeas relief to exhaust all remedies available in the state courts). When a habeas petitioner fails to raise his federal claims in state court, he deprives the state of “an opportunity to address those claims in the first instance” and frustrates the state's ability to honor his constitutional rights. Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991)). Therefore, when a habeas petitioner defaults his federal claims by failing to raise them in state court in compliance with the relevant state procedural rules, federal habeas review is barred unless the petitioner can demonstrate “cause” for the default and “actual prejudice” as a result of the alleged violation of federal law, or alternatively, demonstrate that failure to consider his claims will result in a fundamental miscarriage of justice. Id.; Coleman, 501 U.S. at 750.

         A thorough review of Crowell's petition and the record in this case conclusively shows that Crowell has inexcusably procedurally defaulted her ineffective assistance of counsel claims; her claim regarding first-time offender status is not cognizable in this action; and, her claims of violation of privacy and illegal arrest are barred. The denial and dismissal of Crowell's petition in its entirety with prejudice without an evidentiary hearing is recommended.

         A. Timeliness

         A one year period of limitation applies to petitions brought under 28 U.S.C. § 2254. This period runs from the latest of: (1) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (2) the date on which the impediment to filing an application created by state action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such governmental action; (3) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or, (4) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).

         Crowell's direct appeal was decided by the Arkansas Court of Appeals on August 19, 2018. The instant petition was filed on September 27, ...


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