Wade v. Hobbs

Filing 8

ORDER advising Petitioner to notify the Court w/i 30 days what he intends to do. If Petitioner is challenging the fact or duration of his confinement, he is advised that he must complete the court-approved 2254 habeas form that the Clerk has already forwarded to him, along with submitting his $5.00 filing fee. If he does not wish to challenge the fact or duration of his sentence & wishes to file a civil-rights (1983) action, he must likewise inform the Court. Failure to comply with the Court's direction will result in dismissal of this action. Signed by Magistrate Judge Jerome T. Kearney on 4/2/2012. (jct)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

OTIS A. WADE
ADC #146863
v.

PETITIONER

Case No. 3:12CV00052 BSM-JTK

CHARLES DAVID BURNETT, ET AL.

RESPONDENTS

ORDER
On February 16, 2012, Petitioner filed a pro se Complaint, pursuant to 42 U.S.C. § 1983,
along with a Motion to Proceed In Forma Pauperis. (Doc. Nos. 1 and 2). The Clerk docketed the
Complaint as a habeas petition, and Petitioner was advised to inform the Court if he did not wish
to file a habeas petition. (Doc. No. 3). In his Responses to the Court, Petitioner has asked that
someone explain to him why he needs to submit a habeas petition to the Court. The Court is not in
the business of telling a Petitioner what he needs to file. Petitioner states in his claim that he was
illegally sentenced and has been falsely imprisoned since August 4, 2009. He requests monetary
relief for his false imprisonment, emotional stress, pain and suffering and loss of wages.
Further review by the Court has revealed that Petitioner pleaded guilty to simultaneous
possession of drugs and a firearm, a Class Y felony, in Crittenden County Circuit Court. He
received sixty months’ probation on November 25, 2008, and the State later revoked his probation,
and on February 18, 2010, he received 300 months’ imprisonment. See Wade v. State, 2011 Ark.
App. 32 (2011). His counsel filed an Anders brief pursuant to Anders v. California, 386 U.S. 738
(1987), and the Arkansas Court of Appeals denied counsel’s motion to be relieved and ordered
briefing. Id. On June 29, 2011, the Arkansas Court of Appeals reversed and remanded the case to

the trial court, holding that Petitioner received an illegal sentence when he received probation for
a Class Y felony; further, the subsequent revocation of probation was also in error. The Arkansas
Court of Appeals found both sentences void and reversed and remanded the case for sentencing
within the range authorized by statute. See Wade v. State, 2011 Ark. App. 464. Petitioner was
thereafter sentenced on January 9, 2012, and he received 120 months’ imprisonment. His initial
receipt into the Arkansas Department of Correction was January 19, 2012, and he is eligible for
release on July 10, 2013. See http://adc.arkansas.gov/inmate_info/index.php (last visited April 2,
2012).
The United States Supreme Court has made clear that when a prisoner seeks to challenge the
facts or duration of his confinement, his claims must be brought in a habeas petition, and not in a
civil-rights action. See Wilkinson v. Dotson, 544 U.S. 74, 78-82 (2005). The Court reasoned that,
because “the essence of habeas corpus is an attack by a person in custody upon the legality of that
custody, and . . . the traditional function of the writ is to secure release from illegal custody,”
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), challenges to the fact or duration of confinement
fall “within the core of habeas corpus,” id. at 487. Congress has passed legislation that specifically
covers such core habeas claims, and allowing prisoners to exclude those habeas statutes by litigating
core habeas claims as civil rights actions would defeat congressional intent. Id. at 489-90.
The Court has also held that when a prisoner brings a claim that does not challenge the fact
or duration of his confinement—that is, when a prisoner does not ask to be released or to have his
sentenced reduced—then the prisoner is not bringing a core habeas claim, and he may litigate his
claim as a civil-rights action. Dotson, 544 U.S. at 82.

2

Once again, Petitioner is advised within thirty (30) days to notify the Court what he intends
to do. If he is challenging the fact or duration of his confinement, Petitioner is advised that he must
complete the court-approved 2254 habeas form that the Clerk has already forwarded to him, along
with submitting his $5.00 filing fee. If he does not wish to challenge the fact or duration of his
sentence and wishes to file a civil-rights (1983) action, he must likewise inform the Court. Failure
to comply with the Court’s directive will result in dismissal of this action.
SO ORDERED this 2nd day of April, 2012.

____________________________________
UNITED STATES MAGISTRATE JUDGE

3