United States District Court, E.D. Arkansas, Pine Bluff Division
THOMAS RAY UNITED STATES MAGISTRATE JUDGE
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.
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.
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”);
Count 2 - Possession of a Firearm by a Felon: Ten-year SIS;
Count 3 - Simultaneous possession of Drugs and Firearms:
Ten-year SIS; 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. See Resp.'s Exh. A, Doc.
17-2 (copies of plea-related documents and sentencing
order). Wilson did not appeal.
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,
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”). On June 28, 2012; July 10,
2013, and February 18, 2014, the prosecutor filed Amended
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. 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. 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
Wilson's First § 2254 Habeas Action Challenging His
State Court Conviction and Sentence in Wilson
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.
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.
State Court's Correction of Invalid Sentence Imposed on
Count 3 in Wilson I and Imposition of a New
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.
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
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. Hearing Transcript, Doc. 17-8.
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 ...