Reeves v. Mabry

• Decision Date: 24 October 1979
• Docket Number: Civ. No. 78-2159.
• Citation: 480 F. Supp. 529
• Parties: Rodney Dale REEVES, Petitioner, v. Jim MABRY, Commissioner of Corrections of the State of Arkansas, and State of Arkansas, Respondents.
• Court: U.S. District Court — Western District of Arkansas

480 F. Supp. 529

Rodney Dale REEVES, Petitioner, v. Jim MABRY, Commissioner of Corrections of the State of Arkansas, and State of Arkansas, Respondents.

Civ. No. 78-2159.

United States District Court, W. D. Arkansas, Fort Smith Division.

October 24, 1979.

Robert S. Blatt, Fort Smith, Ark., for petitioner.

Alice Ann Burns, Asst. Atty. Gen., Little Rock, Ark., for respondents.

MEMORANDUM OPINION

PAUL X WILLIAMS, Chief Judge.

On November 16, 1978, the petitioner, Rodney Dale Reeves, filed his 28 U.S.C. § 2254 petition in which he alleged that he was in State custody in violation of the Constitution and laws of the United States in that he was given an unconstitutional sentence by the Circuit Court of Sebastian County, Arkansas, in Case No. CR-76-338, pursuant to a conviction by a jury which also fixed his sentence. The charges were theft by receiving a stolen automobile and being an habitual criminal.

The conviction in Sebastian County Circuit Court was appealed to the Arkansas Supreme Court, which affirmed the conviction and sentence under date of April 10, 1978, the opinion being reported in 263 Ark. 227, 564 S.W.2d 503.

On April 25, 1978, he filed a petition for rehearing before the Arkansas Supreme Court, which was denied on May 15, 1978.

A petition for writ of certiorari was filed in the United States Supreme Court and on November 13, 1978, the United States Supreme Court entered its order denying the petition.

Petitioner then sought post conviction relief under Rule 37, Arkansas Rules of Criminal Procedure, and on March 12, 1979, the Arkansas Supreme Court denied the application.

This Court finds that petitioner has exhausted State remedies as is required by 28 U.S.C. § 2254.

After petitioner filed his petition in this Court, he made application for bond and this Court made an order permitting him to remain free on his present bond pending disposition of his petition for habeas corpus. This order was entered November 17, 1978, and petitioner has never been actually incarcerated, but remains on bail of $20,000.00 awaiting final disposition in this case.

As grounds for his prayer for relief under § 2254 in this Court, petitioner alleges three grounds as follows:

First: The judgment of the trial court and the opinion of the Arkansas Supreme Court unconstitutionally denied petitioner the right of appointed counsel at his preliminary hearing in violation of Amendments 6 and 14 of the United States Constitution. Petitioner's preliminary hearing was held in Fort Smith Municipal Court on November 16, 1976. Petitioner claimed he was indigent and could not employ counsel. The Municipal Court held he was not indigent and directed that he retain counsel. On November 16, 1978, petitioner again advised the Municipal Court that he had no funds to hire an attorney. The Municipal Court refused to appoint counsel for petitioner and he was not represented by counsel at his preliminary hearing and he was bound over to Circuit Court. The Circuit Court appointed counsel for petitioner and he filed a motion to reset a preliminary hearing. This motion was denied by the Circuit Court.

Second: Petitioner was denied due process of law and a fair trial because evidence of other criminal offenses was admitted in evidence at his trial. Petitioner filed a motion in limine to exclude evidence of other allegedly stolen vehicles found on petitioner's premises pursuant to an August 27, 1976, search warrant. The motion was denied and the trial court permitted the introduction of the evidence over petitioner's objection. The State claimed this evidence (color slides of 4 Volkswagons sic with V.I.N. numbers removed) showed petitioner's identify sic, knowledge and intent. Petitioner objected on the grounds of relevance and prejudice. The introduction of evidence about other crimes permitted the jury to infer that petitioner was a "bad character" and deprived him of due process and a fair trial. This evidence was presented in the State's case in chief.

Third: Petitioner's punishment was unconstitutionally enhanced when the trial court permitted in evidence docket sheets which reflected that petitioner received a suspended sentence for burglary which did not show he was represented by counsel.

Circuit Clerk Paul Brown was called as a witness by the State to prove that petitioner was a habitual criminal. He testified about the docket entries in criminal file # 7414. It reflects that in 1960, petitioner received a suspended sentence for burglary. The docket sheets reflect that one of the defendants charged with petitioner had Martin Green for an attorney. The Court asked Mr. Green to talk to petitioner and another co-defendant. The petitioner entered a guilty plea. The docket entrys sic do not reflect that attorney Martin Green represented Petitioner. Petitioner objected to this testimony about the docket entries which was overruled.

On February 14, 1979, this Court made an order dismissing petitioner's application without a formal hearing, and on February 15, 1979, granted certificate of probable cause to appeal to the Court of Appeals for the Eighth Circuit.

On July 2, 1979, an order of the Court of Appeals was filed with this Court remanding said cause for consideration of the application on its merits (followed by mandate filed July 27, 1979).

On August 21, 1979, the respondents filed an answer and also filed the transcript of the record of the Supreme Court of Arkansas.

On September 13, 1979, the Court held an evidentiary hearing on the habeas petition at which petitioner presented witnesses Attorney Bill Wiggins, Attorney Ben Barry, Bill Sharp, and Petitioner, Rodney Dale Reeves. The respondents presented Attorney Don Langston, Attorney Charles Karr and Attorney Ron Fields.

It was stipulated that the transcript of the Arkansas Supreme Court proceedings be evidence in this case.

At the conclusion of all evidence, the Court heard the oral argument of attorneys both for petitioner and for respondents.

A briefing schedule was announced, which has been completed and the matter is ready for decision by the Court.

From all the evidence, the Court finds that Mr. Reeves was born in 1945. In 1960, when he was 15 years old, he, Riley Cunningham and Tommy Eatmon were charged in the Circuit Court of Sebastian County in Case Number 7414 with burglary. The docket sheet entry for October 21, 1960, is as follows:

The three defts. appeared for arraignment. Only one, Eatmon, was represented by counsel, Martin L. Green. All three entered a plea of guilty as charged. The Court before accepting plea asked attorney Martin L. Green to confer with the other 2 defts. Upon reappearing the three defts. wished to enter a plea of guilty. Sentence later date.

Petitioner received a three-year suspended sentence. On March 10, 1961, Reeves' suspended sentence was set aside and he was resentenced to three years in the state penitentiary.

In 1968, petitioner and his brother were charged with Grand Larceny in Sebastian County Circuit Court in Cases Number 1203 and 1204. On October 31, both pleaded guilty and were placed on probation for five years.

In 1969, Rodney Dale Reeves was charged in the United States District Court for the Northern District of Oklahoma in Cases Number 69-CR-54 and 69-CR-55 with transportation of a stolen automobile and pick-up truck. He was represented by W. I. Hanson and pleaded guilty to each charge. He received a three-year sentence in Case No. 69-CR-54, and probation to commence at the expiration of his incarceration in Case No. 69-CR-55.

In 1974, petitioner and his brother were again charged with the commission of a felony in the Sebastian County Circuit Court. Petitioner was charged with possession of stolen property and with being an habitual criminal in Case Number CR-74-47. He was represented by Honorable Bill Wiggins, and after trial to a jury, was found guilty on both charges. The Arkansas Supreme Court reversed both convictions and remanded for a new trial. Reeves v. State, 258 Ark. 788, 528 S.W.2d 924 (1975).

In 1976, Reeves was charged in Sebastian County Circuit Court with receiving a stolen 1967 GTO Pontiac automobile (CR-76-337) and theft by receiving a 1973 Volkswagen (CR-76-338). Petitioner appeared for arraignment on both charges in Municipal Court on October 15 or 16, 1976. He stated he did not have funds to hire an attorney and the public defender, Honorable Don Langston, was appointed to represent him. An indigency hearing occurred with respect to CR-74-47, the conviction which had been reversed and remanded by the Arkansas Supreme Court. The municipal court found Reeves was not an indigent and allowed the public defender to withdraw as counsel for Reeves in all three criminal cases then pending, CR-74-47, CR-76-337 and CR-76-338.

On November 16, 1976, petitioner appeared without counsel for preliminary hearing in municipal court on Cases Numbered CR-76-337 and CR-76-338, stating he could not afford to employ one. The Court proceeded with Reeves representing himself. The State presented witnesses and bound Reeves over to Circuit Court.

On November 18, 1976, he appeared before the Circuit Court. The charges were read to him and he entered a not guilty plea.

On March 24, 1977, the Circuit Court found petitioner to be an indigent and appointed the public defender to represent him. The public defender advised the Court of a conflict of interest and the Honorable Matthew Horan was appointed.

On April 22, 1977, the Circuit Court denied petitioner's request for another preliminary hearing, one in which Reeves would be represented by counsel.

On April 26 and 27, 1977, petitioner stood trial in Case Number CR-76-338. He was ably assisted by Honorable Matthew Horan. The trial court overruled Reeves' objections and admitted into evidence testimony relating to and photographs of other stolen automobiles found at Reeves' home which had had their vehicle identification numbers removed.

The jury returned a...