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Smith v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

October 2, 2019

WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT


         The 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.

         I. Background

         Pending 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.

         On 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.[1] Smith v. State, 2009 Ark.App. 151; Sentencing Order, Doc. 11-2.

         Smith 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 Smith v. State, 2009 Ark.App. 151 (unpublished).

         On May 5, 2009, Smith filed a timely Rule 37 petition in the trial court, and he later later amended his petition to add additional claims.[2] Doc. 2, pp. 56-62, 74-83.

         On January 7, 2010, the trial court denied all of Smith's claims for Rule 37 relief. Doc. 2, pp. 96-101.[3]

         Smith appealed the denial of Rule 37 relief.[4] 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 a brief.[5]

         On June 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.[6] 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 court.[7]

         On 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 defense;
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 pre-trial motions;[8]and
Claim 4: His trial counsel failed to request a lesser included offense jury instruction.[9]

         Respondent 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.

         Because all of Smith's habeas claims are procedurally defaulted, [10] the Court recommends that his habeas Petition be dismissed, with prejudice.

         II. Discussion

         A. Smith's Federal Habeas Claims Are Procedurally Defaulted

         A 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).

         By 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).

         To 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 defaulted.”).

         Smith 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 ...

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