United States District Court, E.D. Arkansas, Pine Bluff Division
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge James Moody, Jr. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days
of the entry of this Recommendation. The failure to timely
file objections may result in waiver of the right to appeal
questions of fact.
before the Court is a § 2254 Petition for a Writ of
Habeas Corpus filed by Petitioner, Willie Clay Smith
(“Smith”). Doc. 2. Before addressing
Smith's habeas claims, the Court will review the
procedural history of the case in state court.
April 22, 2008, a Pulaski County Circuit Court jury found
Smith guilty of theft of property and sentenced him, as a
habitual offender, to 25 years'
imprisonment. Smith v. State, 2009 Ark.App.
151; Sentencing Order, Doc. 11-2.
appealed. His sole point on direct appeal was that the trial
court erred when it ruled on a Batson challenge by
requiring evidence of a pattern of discrimination. On March
4, 2009, the Arkansas Court of Appeals affirmed Smith's
conviction. Smith v. State, 2009 Ark.App. 151
5, 2009, Smith filed a timely Rule 37 petition in the trial
court, and he later later amended his petition to add
additional claims. Doc. 2, pp. 56-62, 74-83.
January 7, 2010, the trial court denied all of Smith's
claims for Rule 37 relief. Doc. 2, pp.
appealed the denial of Rule 37 relief. However, Smith
failed to file an appellate brief, despite being given
several extensions of time to do so. On January 13, 2011,
Smith's Rule 37 appeal was dismissed for failure to file
2, 2011, Smith filed a Petition to Correct Sentence in the
trial court. Doc. 11-4. On May 18, 2012, Smith filed
a Petition for Habeas Corpus in the trial
court. Doc. 11-4. As of the date of this
Recommendation, it does not appear that either of Smith's
Petitions have been ruled on by the trial
January 3, 2019, Smith filed the § 2254 Petition now
before the Court. Doc. 2. Smith asserts four
ineffective assistance of counsel claims:
Claim 1: His trial counsel failed to competently investigate
the case, discover the State's evidence, and develop a
Claim 2: His trial counsel failed to examine the charging
documents in the case and failed to obtain a video of Smith
committing the alleged theft;
Claim 3: His trial counsel failed to prepare and file
Claim 4: His trial counsel failed to request a lesser
included offense jury instruction.
argues that Smith's habeas Petition should be dismissed
because his claims are time-barred. Alternatively, Respondent
argues that Smith's claims are procedurally defaulted.
Doc. 11. Smith was given an opportunity to file a
Reply, but failed to do so. Thus, the issues are joined and
ready for disposition.
all of Smith's habeas claims are procedurally defaulted,
the Court recommends that his habeas Petition be dismissed,
Smith's Federal Habeas Claims Are Procedurally
habeas petitioner must first “fairly present” his
claims in state court before seeking § 2254
relief in federal court. Murphy v. King, 652 F.3d
845, 848-49 (8thCir. 2011); 28 U.S.C. §
2254(b)(1)(A) (“An application for a writ of habeas
corpus ... shall not be granted unless it appears that the
applicant has exhausted the remedies available in the courts
of the State”). A petitioner must present the substance
of his federal habeas claim not only in the state trial
court, but also in “one complete round of the
State's established appellate review process.”
Murphy v. King, 652 F.3d at 848-49; Grass v.
Reitz, 643 F.3d 579, 584-85 (8th Cir. 2011).
exhausting all available state court remedies, a habeas
petitioner gives the State that convicted him an
“‘opportunity to pass upon and correct'
alleged violations of its prisoners' federal
rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (per curiam). When a petitioner fails to fully exhaust
his claims in state court and the time for doing so has
expired, his claims are procedurally defaulted. Coleman
v. Thompson, 501 U.S. 722, 731-32 (1991).
exhaust his Rule 37 ineffective assistance of counsel claims,
Smith was required to raise those claims with the trial court
and then appeal its denial of relief to the Arkansas Supreme
Court. Armstrong v. Iowa, 418 F.3d 924, 925-26
(8th Cir. 2005). A federal habeas claim is
procedurally defaulted where a state court declines to review
the claim because it was not raised and presented as required
by state procedural rules. See Moore-El v. Luebbers,
446 F.3d 890, 896 (8th Cir. 2006), cert. denied, 549
U.S. 1059 (2006) (“Where a petitioner fails to follow
applicable state procedural rules, any claims not properly
raised before the state court are procedurally
failed to raise Claims 1 through 3 with the trial court.
Although he raised Claim 4 in in his Rule 37 petition filed
with the trial court, he failed to properly appeal the trial
court's denial of that ...