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Wilson v. Payne

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

November 7, 2019

DEXTER PAYNE, Director, [1]Arkansas Department of Correction RESPONDENT



         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge Billy Roy Wilson. 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 Amended Petition for a Writ of Habeas Corpus filed by Petitioner, Deterrius Lamont Wilson (“Wilson”). Doc. 3. Before addressing Wilson's habeas claims, it is important to understand the procedural history of the case in state court.

         A. Wilson's State Court Convictions and Sentences On August 24, 2010, Wilson entered a negotiated guilty plea in Crittenden County Circuit Court to four felony offenses and was sentenced as follows:

Count 1- Possession of a controlled substance with intent to deliver: Eight-years, followed by a two-year suspended imposition of sentence (“SIS”);[2]
Count 2 - Possession of a Firearm by a Felon: Ten-year SIS;
Count 3 - Simultaneous possession of Drugs and Firearms: Ten-year SIS;[3] and
Count 4 - Theft of property: Ten-year SIS.

State v. Wilson, Crittenden County Circuit Court No. CR-2009-1377 (“Wilson I”). The trial judge ordered that all sentences run concurrently.[4] See Resp.'s Exh. A, Doc. 17-2 (copies of plea-related documents and sentencing order). Wilson did not appeal.

         Wilson completed the eight-year sentence on Count 1 and was released from the Arkansas Department of Corrections. Thereafter, he still remained under the ten-year SIS imposed on Counts 2, 3, and 4.[5]

         On December 1, 2011, the prosecutor filed a Petition for Revocation based on Wilson violating the terms of his SIS imposed in Wilson I, as well as the terms of his probation and SIS imposed in an earlier case, State v. Wilson, Crittenden County Circuit Court No. CR-2005-271 (“”CR-2005-271”).[6] On June 28, 2012; July 10, 2013, and February 18, 2014, the prosecutor filed Amended Revocation Petitions.

         On February 24, 2014, Circuit Court Judge John Fogleman held a revocation hearing in Wilson I and CR-2005-271. At the beginning of the hearing, Wilson's attorney made an oral motion calling to the court's attention that the ten-year SIS originally imposed on Count 3 was invalid because Arkansas law required a sentence of imprisonment on a guilty plea to simultaneous possession of drugs and a firearm, a Class Y felony.[7] Doc. 17-4 at pp. 3-5. Judge Fogleman did not address the consequences of Judge Wilson's imposition of this invalid sentence on Count 3, or discuss how he should now go about remedying that error. Instead, after hearing testimony, Judge Fogleman ruled that Wilson had violated the terms and conditions of the SIS imposed on Counts 1, 2 and 4 in Wilson I, and ignored the issue of whether the sentence Judge Wilson imposed on Count 3 was invalid. Judge Fogleman sentenced Wilson to: (1) two years of imprisonment on Count 1, possession of a controlled substance with intent to deliver; (2) an additional ten years SIS on Count 2, possession of a firearm by a felon; and (3) ten years imprisonment on Count 4, theft of property.[8] The Judgment and Commitment Order made it clear that those three sentences were to run concurrently. Doc. 17-4 at pp. 47-48. Wilson did not pursue a direct appeal from the imposition of those sentences or, later, pursue post-conviction relief under Rule 37.1 of the Arkansas Rules of Criminal Procedure.[9]

         B. Wilson's First § 2254 Habeas Action Challenging His State Court Conviction and Sentence in Wilson I

         On February 12, 2015, Wilson filed a § 2254 habeas Petition challenging the February 24, 2014 revocation and sentencing in Wilson I. Wilson v. Kelly, E.D. Ark. Case No. 5:15-cv-00017-JTR. In his Petition, Wilson argued that the “aggregate sentence” he received, during the revocation hearing, was invalid because: (1) it was the “fruit” of the original ten-year SIS that Judge Wilson erroneously imposed for simultaneous possession of drugs and firearms, an offense that required “mandatory prison time”; and (2) because Judge Fogleman's Sentencing Order failed to mention the erroneous and invalid ten-year SIS sentence on Count 3, Wilson was “only revocated in part.” Id. at Doc. 3 at pp. 4-6; Doc. 14 at p. 4.

         On August 21, 2015, I entered an Order holding that all of Wilson's claims were procedurally defaulted because he failed to file a direct appeal challenging either Judge Fogleman's February 24, 2014 revocation decision and sentences or the original sentences imposed by Judge Wilson in Wilson I. Id. at Doc. 14 at pp. 4-6. Accordingly, I entered a Judgment dismissing, with prejudice, Wilson's habeas Petition in No. 5:15-cv-00017. Id. at Doc. 14. Wilson did not appeal.

         C. State Court's Correction of Invalid Sentence Imposed on Count 3 in Wilson I and Imposition of a New Sentence

         On April 5, 2018, the prosecutor filed a Petition for Revocation of the sentence imposed on Count 3 in Wilson I. Doc. 17-10 at pp. 1-2.[10]

         On September 14, 2018, Circuit Judge Randy Philhours held a revocation hearing. During the hearing, the State presented the testimony of West Memphis Police Officer O'Dell Livingston. Officer Livingston testified about a March 2018 incident in which Wilson fled from the police in a vehicle. During the high-speed chase, Wilson drove through residential neighborhoods and pointed a gun at the police from inside his vehicle. After Wilson lost control of the vehicle, he fled on foot. During the foot chase, Wilson dropped a gun and a bullet-proof Kevlar vest. When finally apprehended, Wilson had two fully loaded 9 mm magazines on his person. A search of the car revealed a second gun. Doc. 17-8 at 10-62.

         At the end of the hearing, counsel brought to Judge Philhours' attention that the original sentence imposed by Judge Wilson on Count 3 appeared to be invalid. Judge Philhours postponed ruling on the revocation issue until the attorneys' briefed whether the original ten-year SIS on Count 3 was invalid, and, if so, how the court should proceed.[11] Hearing Transcript, Doc. 17-8.

         On October 17, 2018, the prosecutor filed a Motion to Correct Illegal Sentence. He argued that, in lieu of proceeding with the pending Revocation Petition, Judge Philhours should exercise jurisdiction to correct the invalid ten-year SIS sentence Judge Wilson imposed on Count 3 in August of 2010. According to the prosecutor, because the original sentence was invalid on its face, it could be corrected at any time. This meant Judge Philhours had the authority to impose a corrected sentence on Count 3 of not less than ten years nor more than forty years, or life, the statutory sentencing range under ...

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