Wolfe v. Payne
| Decision Date | 15 July 2022 |
| Docket Number | CIVIL 21-5190 |
| Parties | BILLY WOLFE PETITIONER v. DEXTER PAYNE, Director Arkansas Division of Correction RESPONDENT |
| Court | U.S. District Court — Western District of Arkansas |
REPORT AND RECOMMENDATION
Petitioner Billy Wolfe (“Petitioner”) filed his Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1) on October 28, 2021. The Court directed a response from Dexter Payne, Director Arkansas Division of Correction (“Respondent”) which was filed on December 17, 2021 (ECF No. 11), and Petitioner replied on January 21, 2022, and filed a Supplemental Reply on February 22, 2022 (ECF Nos. 15, 16). The Petitioner was referred to the undersigned for Report and Recommendation pursuant to Rule 72.1 (VIII)(B)(1) of the Local Rules for the United States District Court for the Eastern and Western Districts of Arkansas. Transcripts of Petitioner's 2005 Benton County plea hearing were requested by the Court and provided by Respondent on May 2 2022, and the matter is now ripe for consideration.
On July 5, 2003, Petitioner pled guilty to capital murder and kidnapping in the Circuit Court of Benton County, Arkansas, before Judge David S. Clinger. Petitioner, a member of the Cherokee Nation who resided within the Cherokee Nation, was charged with committing numerous crimes in Benton County, Arkansas. Petitioner pled guilty to capital murder and kidnapping (both Class Y felonies under Arkansas law) in exchange for (a) the State of Arkansas agreeing to waive the death penalty and dismiss a second count of kidnapping, (b) the United States Attorney for the Western District of Arkansas agreeing not to prosecute Petitioner, and (c) the State of Oklahoma (Delaware County) agreeing to dismiss a pending rape charge against Petitioner. See Order, State of Arkansas v. Wolfe, CR 2004-32-2, August 31, 2006 (ECF No. 114), Plea Hearing Transcript (ECF No. 11-13). Petitioner was sentenced to the Arkansas Division of Corrections for a term of life without parole for capital murder and a concurrent life term for kidnapping. See Judgment and Commitment Order, State of Arkansas v. Wolfe, CR 2004-32-2, July 6, 2005. (ECF No. 11-1).
On October 3, 2005, Petitioner sought post-conviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. (ECF No. 11-3). Petitioner alleged (a) several instances of ineffective assistance of counsel; (b) an unconstitutional search and seizure involving his truck; and (c) denial of his right to a fair and impartial trial because of an alleged conflict of interest on the part of his counsel. Because Petitioner pled guilty, Judge Clinger applied the governing precedents of State v. Herred, 332 Ark. 241 (1998) and Strickland v. Washington, 466 U.S. 668 (1984) to Petitioner's ineffective assistance claims, finding on August 31, 2006, that Petitioner failed to plead prejudice under Strickland as he failed to plead that, but for these errors, he would have not pled guilty but would have proceeded to trial on the capital charges and faced the death penalty. (ECF No. 11-4). Judge Clinger observed that Petitioner's pleadings were not factually specific but conclusory, failing to illustrate how his attorneys failed to do their job to the best of their abilities, and failing to specify what evidence proved his innocence. Id. Following review of the record, Judge Clinger recounted that Petitioner was aware of his constitutionally protected rights and knew he was waiving them by pleading guilty. Id. Judge Clinger then chronicled that during Petitioner's change of plea hearing, Petitioner persuaded the Court that he was fully satisfied with his counsel, that his counsel had received and reviewed with him the evidence of the State, and that there was nothing Petitioner asked of counsel that they failed to do. Id. Judge Clinger stated that “despite being given every opportunity to express dissatisfaction with the advice and assistance of his attorneys, the Petitioner did not do so.” Id. With respect to Petitioner's search and seizure contentions, Judge Clinger observed that the claim was not specific enough to justify revisiting his prior denial of a motion to suppress, and then found it not cognizable in a Rule 37 proceeding as the claim was voluntarily and intelligently waived by Petitioner's plea and never raised during a direct appeal. Id., citing Herred, supra. A similar analysis was applied to the alleged conflict of interest which had been the subject of a hearing conducted by Judge Clinger on June 24, 2005. Id. The Rule 37 petition was denied, and Petitioner did not file an appeal.
More than thirteen (13) years passed, and then, on January 23, 2020, Petitioner filed a petition for state habeas corpus relief in the Circuit Court of Jefferson County, Arkansas. (ECF No. 11-5). The Petition was denied on March 12, 2020. (ECF No. 11-6). Judge Dennis, Circuit Judge for Jefferson County, found that Petitioner's claims - that the trial court lacked jurisdiction because he is a Cherokee Indian; that law enforcement lacked authority to arrest him and conduct a search on tribal land; and that his counsel was ineffective - should have been raised “at the trial court level, on direct appeal, or in a timely post-conviction proceeding,” and were not “cognizable in a habeas matter.” Id. Petitioner subsequently appealed to the Arkansas Supreme Court who denied his claim for habeas relief in a written decision issued on April 22, 2021. See Wolfe v. Payne, 2021 Ark. 87, cert denied, 142 S.Ct. 262 (2021). (ECF No. 11-10).
A state prisoner who believes he is incarcerated in violation of the Constitution or laws of the United States may file a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Such petitions are governed by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, federal courts may exercise only a “limited and deferential review of underlying state court decisions.” Osborne v. Purkett, 411 F.3d 911, 914 (8th Cir. 2005). A federal court may not grant a writ of habeas corpus unless the state court's adjudication of a claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” clearly established federal law if it “applies a rule that contradicts the governing law set forth in Supreme Court cases or if it confronts a set of facts that are materially indistinguishable from a decision of the Court and nevertheless arrives at a result different from the Court's precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A federal habeas court may not issue the writ merely because it concludes the state court applied the clearly established federal law erroneously or incorrectly. Id. at 411. “Rather, that application must also be unreasonable.” Id.
Petitioner alleges several grounds for habeas relief under § 2254 (ECF No. 1, pp. 5-10). Petitioner first says that the State of Arkansas could not properly exercise jurisdiction over him, alleging only the United States or the Cherokee Nation could prosecute him for his alleged crimes. In Ground Two, Petitioner similarly alleges that the search and seizure of Petitioner and his property unlawfully violated treaties between the Cherokee Nation and the United States. With respect to Grounds One and Two, Petitioner relies upon the United States Supreme Court's decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020) and the subsequent decision of Hogner v. Oklahoma, 500 P.3d 629 (2021). Third, Petitioner says that the State of Arkansas violated the terms of his plea deal by sentencing him to life without parole when he had agreed to plead guilty and receive a sentence of life with the possibility of parole. Finally, Petitioner says that his trial counsel was ineffective for failing to raise Grounds 1-3.
This Court's review of the § 2254 Petition and the records of Petitioner's case conclusively illustrate that he is not entitled to relief, and the undersigned recommends denial and dismissal of his § 2254 Petition with prejudice and without conducting an evidentiary hearing. See McQuigin v. Perkins, 569 U.S. 383, 395 (2013); reaffirmed by Shinn v. Ramirez, 2022 WL 1611786 (May 23, 2022).
The Court is further instructed by Abdullah v. Norris, 18 F.3d 571 (8th Cir. 1994), and because it recommends dismissal of the § 2254 petition, the Court also recommends denial of Petitioner's Motions for Appointment of Counsel (ECF Nos. 10, 13). Id. at 573 ( )
Section 2244(d)(1) establishes a 1-year limitation period on petitions filed pursuant to § 2254. The limitation period of § 2244(d)(1) runs from the latest of:
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