Ellis v. Mabry, 78-1742
| Decision Date | 09 July 1979 |
| Docket Number | No. 78-1742,78-1742 |
| Parties | Charles L. ELLIS, Appellant, v. James MABRY, Commissioner, Arkansas Department of Correction, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David K. Gunti of Baim, Baim, Gunti, Mouser & Bryant, Pine Bluff, Ark., on brief, for appellant.
Bill Clinton, Atty. Gen., and Jesse L. Kearney, Asst. Atty. Gen., Little Rock, Ark., on brief, for appellee.
Before HEANEY, STEPHENSON and McMILLIAN, Circuit Judges.
Charles L. Ellis pled guilty to a charge of first degree murder in the Circuit Court of Saline County, Arkansas, on December 8, 1958. He received a life sentence.
In 1968, Ellis filed a petition with the state court according to Arkansas Criminal Procedure Rule 1, challenging the validity of his conviction. The Supreme Court of Arkansas ultimately denied the petition. Ellis v. State, 245 Ark. 740, 434 S.W.2d 275 (1968).
In 1970, Ellis filed a habeas corpus petition with the United States District Court for the Eastern District of Arkansas. He alleged that his conviction was invalid because (1) he was arrested in New Mexico and returned to Arkansas without an extradition hearing, (2) he was confined before trial without benefit of an arraignment or preliminary hearing, and (3) he was never indicted by a grand jury. The District Court denied relief on the grounds that the guilty plea waived the alleged defects. Between 1970 and 1977, at least four additional petitions for habeas corpus were filed with the same court. All were denied.
In 1976, Ellis filed a second Rule 1 petition with the state court. He alleged for the first time that he had been denied effective assistance of counsel before, during and after his sentencing hearing. He also alleged that his plea of guilty was involuntary. The petition was denied and the denial was affirmed by the Arkansas Supreme Court in an unpublished per curiam opinion. Charles Ellis v. State, No. 5388 (Ark. Sept. 24, 1976). The court held that all grounds for postconviction relief must be raised in a petitioner's original or amended petition and that Ellis had not alleged or demonstrated an issue which could not have been asserted or included in his previous petition as constituting a violation of his constitutional rights.
On June 17, 1977, a sixth habeas corpus petition was filed with the District Court. Ellis alleged for the first time in federal court that he had been denied effective assistance of counsel before, at and after the sentencing proceeding and that his guilty plea was involuntary.
The District Court denied relief on alternative grounds: (1) that the issues raised had been previously decided adversely to Ellis, and (2) that if they had not been presented, it was his own fault and he could not present them in a subsequent habeas corpus petition.
The state concedes on appeal that the issues of ineffective assistance of counsel and the voluntariness of the plea have not been previously decided. It argues, however, that the petition was properly dismissed under Rule 9(a) and (b) of the rules governing § 2254 cases. This rule provides:
RULE 9. Delayed or successive petitions
(a) Delayed petitions. A petition may be dismissed if it * * * the state * * * has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner...
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