Abram v. Allen et al

Filing 11

ORDER adopting as supplemented and modified 8 Recommended Disposition. Abram's petition for a writ of habeas corpus is dismissed with prejudice. The recently filed 10 Petition is also dismissed. Abram's continuing arguments that the Fe bruary 2012 guilty plea was involuntary and his judgment was void for want of jurisdiction is dismissed with prejudice. The other parts of the petition are dismissed without prejudice to being asserted in a new habeas petition in another case. Signed by Judge D. P. Marshall Jr. on 6/19/2014. (jak)

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

STACY S. ABRAM, IV
v.

PETITIONER
No. 3:13-cv-212-DPM-BD

MIKE ALLEN, Sheriff, CriHenden County,
Arkansas; STATE OF ARKANSAS;
and RAY HOBBS, Director, Arkansas
Department of Correction

RESPONDENTS

ORDER
1. The Court has considered Magistrate Judge Beth Deere's
recommended disposition of Abram's habeas petition, NQ 8, and Abram's
objections, NQ 9. On de novo review, FED. R. CIV. P. 72(b)(3), the Court adopts
Judge Deere's recommendation as supplemented and modified. Abram raises
three issues: he says his guilty plea was involuntary, his right to a speedy trial
was violated, and the circuit court didn't have jurisdiction to accept his guilty
plea. NQ 2. The objections to the voluntariness and speedy-trial issues are
overruled as frivolous, and the Court adopts Judge Deere's recommendation
on these two points.

2. The jurisdiction issue needs more analysis. Abram says that the
Crittenden County Circuit Court didn't have jurisdiction to accept his guilty
plea or enter judgment because a notice of removal, which he had filed the
day before, was pending in federal court when he pleaded guilty and was
sentenced. Abram's notice of removal was defective on its face. It was
untimely by several months, and this Court remanded the day after the
petition was filed. NQ 7-3 at 6-7. The Crittenden County Circuit Court
received the mandate, though, two days after Abram pleaded guilty and was
sentenced to three years' probation. NQ 7-1 & 7-2 at 2-3.
Removal in a criminal case can lead to jurisdictional tangles, ·which is
why the leading commentators describe the situation as a "heady sport." 19A
WRIGHT AND MILLER, FEDERAL PRACTICE & PROCEDURE§

1445 (4th ed. 2009).

The criminal removal statute was amended in 2011. The former version
applies here because Abram's state criminal case began in 2011, before the
amended statute went into effect. A defendant wishing to remove a criminal
prosecution from state court had to file a notice of removal in district court
within thirty days of arraignment in state court. 28 U.S.C. § 1446(a) & (c)(1).
The notice did not divest the state court of jurisdiction. The state court could

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proceed "except that a judgment of conviction shall not be entered unless the
prosecution is first remanded." 28 U.S.C. § 1446(c)(3); see also 14C WRIGHT
AND MILLER, FEDERAL PRACTICE & PROCEDURE§ 3731, at 486 (4th ed. 2009).
State courts have held that a guilty plea may be accepted while a notice
of removal is pending in federal court. People v. Wiedemer, 899 P.2d 283, 28485 (Colo. App. 1994) (collecting cases); People v. Purofoy, 323 N.W.2d 446,453
(Mich. Ct. App. 1982). The Arkansas Supreme Court seemed to be on this
path in this case. NQ 7-4 at 13. This Court agrees with, and adopts, that
reading of the federal statute. Abram's guilty plea, therefore, was valid. It
stands in any event. But was the Crittenden County Circuit Court without
jurisdiction to enter the judgment of conviction? Yes. The statute is plain and
clear. The state court erred in entering judgment while Abram's petition for
removal was pending in federal court. 28 U.S.C. § 1446(c)(3).
The State argues that the error is immaterial because Abram filed his
habeas petition too late. Limitation issues should be resolved before the
merits and other procedural issues. The habeas statute provides a one-year
limitation period that began to run on the date that Abram's "judgment
became final by the conclusion of direct review or the expiration of the time

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for seeking such review[.]" 28 U.S.C. § 2244(d)(l)(A). The question becomes,
then, whether the Circuit Court's judgment became final for purposes of
habeas review notwithstanding the jurisdictional defect in that judgment.
The United States Supreme Court has made clear that, for petitioners
like Abram, who do not pursue direct review to that Court, "the judgment
becomes final at the expiration of the time for seeking such review- when the
time for pursuing direct review in this Court, or in state court, expires."
Gonzalez v. Thaler, 132 S. Ct. 641, 653-54 (2012). State law governs the period

Abram had to appeal and therefore affects the date of the faulty judgment's
finality. Gonzalez, 132 S. Ct. at 655; 1 HERTZ & LIEBMAN, FEDERAL HABEAS
CORPUS PRACTICE &PROCEDURE§ 5.2 n.42 (6th ed. 2011). Under the Arkansas
Rules of Criminal Procedure, criminal defendants who enter unconditional
guilty pleas,like Abram did, have no right to a direct appeal. ARK. R. APP. P.CRIM. 1(a). Abram entered his unconditional guilty plea on 28 February 2012;
his time for seeking direct review in state court therefore expired on that date.
Abram didn't file his habeas petition until26 September 2013, about
seven months too late. And Abram didn't file his state-court motions-his
motion to dismiss and his petition for a writ of prohibition-until July 2013
and October 2013. NQ 7-2 at 4-5. Because these motions were filed more than

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one year after the defective judgment was entered, they didn't toll the habeas
limitation period.
For two reasons, the Court holds that Abram's judgment became final
for habeas limitation purposes in February 2012 even though the state court
lacked jurisdiction to enter it.1 First, Congress added the one-year provision
to limit abuse of the Great Writ and to address problems of unnecessary
delay. Holland v. Florida, 560 U.S. 631, 648-49 (2010). If the one-year clock
didn't start to run automatically, even on a faulty judgment, then a petitioner
with a claim about his state-court judgment could bring a habeas petition at
any time. That result would make the limitation period an empty provision,
at least in some cases, contrary to Congress' intent.

Extraordinary

circumstances, of course, can toll the period. Holland, 560 U.S. at 649. No
such circumstances are presented here.
Second, Abram was the one who filed the notice of removal. He created
the jurisdictional defect that became embodied in this judgment. He must
have known about the defect on the day he pleaded guilty and was sentenced.

1

The Sixth Circuit has so held. E.g., Frazier v. Moore, 252 Fed. Appx. 1
at *6-7 (6th Cir. 2007) (unpublished). While this case is not precedent, it is
informative.
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If he'd wanted to challenge his conviction on this ground, he should have
done so within the one-year window. Instead, Abram accepted the benefit of
a probationary sentence and put the jurisdictional defect in his pocket against
the day he faced a possible revocation. That was too clever by half: Abram
either had to challenge the state court's judgment in federal court within a
year of entry or live with it, for better or for worse. The jurisdictional defect,
therefore, does not undermine the revocation.

***
Abram's no-jurisdiction argument, though correct, is barred by 28
U.S.C. § 2244(d)(l)(A)'s one-year statute of limitation. His petition for a writ
of habeas corpus is dismissed with prejudice. His recently filed emergency
petition, NQ 10, is also dismissed. This new paper says many things, but at its
core are Abram's continuing arguments that his February 2012 guilty plea
was involuntary and his judgment was void for want of jurisdiction. These
parts of the emergency petition are dismissed with prejudice. The other parts
of the petition, which relate to the particulars of new criminal charges, are
dismissed without prejudice to being asserted in a new habeas petition in
another case.

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So Ordered.

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