Day v. Gilkey

Filing 8

RECOMMENDED DISPOSITION recommending that 1 Petitioner Michael Day's Petition for Writ of Habeas Corpus be denied, and that the case be dismissed in its entirety, without prejudice; and recommending that a Certificate of Appealability be denied. Objections due 14 days of the entry of this Recommendation. Signed by Magistrate Judge J. Thomas Ray on 4/5/2018. (kdr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

MICHAEL GRANT DAY
V.

PETITIONER

NO. 4:18-CV-00070-KGB-JTR

BILL GILKEY, Sheriff,
Yell County, Arkansas

RESPONDENT

RECOMMENDED DISPOSITION
The following Recommended Disposition (“Recommendation”) has been sent
to United States District Judge Kristine G. Baker. You may file written objections
to all or part of this Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days of the entry of this
Recommendation. The failure to timely file objections may result in waiver of the
right to appeal questions of fact.
I. Overview of Allegations and Pending State Court Proceeding
On January 26, 2018, Petitioner, Michael Grant Day (“Day”) filed a pro se
Motion for Writ of Habeas Corpus (“Motion”). Doc. 2. Day is not challenging a
final state court conviction, but instead is complaining about pending and unresolved

state court criminal charges from Yell County Circuit Court.1 To place Day’s habeas
allegations in context, it is helpful to summarize the state court proceedings.
Day’s Petition and the pleadings from Yell County Circuit Court indicate that
Day has been adjudicated mentally unfit to proceed to trial on criminal revocation
charges in State v. Day, Yell County Circuit Court Case No. 75SCR-15-89 (“the
state court revocation charges”). A closer review of the pleadings reveals that: (1)
on August 18, 2016, Day was sentenced to 36 months’ probation following Day’s
negotiated guilty plea to a felony charge of possession of a controlled substance; (2)
on June 14, 2017, the State filed a Petition to Revoke Day’s Probated Sentence,
contending that Day had violated the terms of his probation; (3) on October 5, 2017,
an Order was entered finding reasonable suspicion to believe that Day might not be
fit to proceed and directing that he undergo a mental evaluation; (4) on December
7, 2017, a Not Fit to Proceed Commitment Order was entered committing Day to the
custody of the Arkansas State Hospital “for detention, care and treatment until
restoration of fitness to proceed.”2; and (5) a status review is scheduled for June 7,

1

A court “may take judicial notice of proceedings in other courts of record.” Rodic v.
Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980); see also Hood v. United States,
152 F.2d 431 (8th Cir. 1946) (federal district court may take judicial notice of proceedings from
another federal district court).
The pleadings from the pending state criminal case against Day are available through the
Arkansas courts’ website. See https://caseinfo.aoc.arkansas.gov.
2

The effect of the Not Fit to Proceed Order was to suspend the pending state criminal
case. See Ark. Code Ann. § 5-2-310(a)(1)(A) (Supp. 2017). The criminal proceeding may be

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2018.

Thus, Day is being held pursuant to a state court Commitment Order in

connection with ongoing state court revocation charges. 3
Day’s Petition alleges that he is entitled to habeas relief because: (1) “on July
6, 2017, the Yell County Court exceeded well beyond 30 days to violate me”; (2)
“Office Scott Franks stated he did not have any physical evidence such as photos,
video, audio, fingerprints;” and (3) the mental evaluation finding Day unfit to stand
trial was flawed.4 Doc. 1 at 5-6, 20.
On February 14, 2018, the Court directed service of the Petition. Doc. 4.

resumed if the state court determines that Day “has regained fitness to proceed.” Alternatively,
the pending charges may be dismissed if the state court determines, at some future point in time,
that “so much time has elapsed since the alleged commission of the offense in question that it
would be unjust to resume the criminal proceeding.” Ark. Code Ann. § 5-2-310(c)(2).
3

Because Day seeks habeas relief in connection with pending and unresolved state court
revocation charges, his habeas Petition, although characterized as being filed pursuant to 28 U.S.C.
§ 2254, will be construed as seeking relief under 28 U.S.C. § 2241. See Gaster v. South Carolina
Dept. of Corrections, 67 Fed.Appx. 821 at *1 n. * (4th Cir.2003) (noting that “Although Gaster
originally filed the petition under 28 U.S.C. § 2254, because he challenged the constitutionality of
a state civil commitment, [it was] properly characterized it as a petition under 28 U.S.C. § 2241.”);
Neville v. Cavanaugh, 611 F.2d 673, 675 (7th Cir. 1979) (federal court’s jurisdiction over pretrial
habeas petition is under § 2241(c)(3)); compare Crouch v. Norris, 251 F.3d 720, 723 (8th Cir.
2001) (person in custody pursuant to the judgment of state court can obtain habeas relief only
through § 2254, no matter how pleadings are styled; rejecting state prisoner's contention that his
petition should be classified as § 2241 petition).
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Day also contends that being labeled has having a mental disease “is like denying that
God exist!!!” Doc. 1 at 20.
Day also suggests this Court should direct “the Yell County Court’s System [to] undergo
a mental evaluation.” Such relief is beyond the power of this Court.
Finally, Day’s Petition also includes a lengthy description of his version of the domestic
altercation with his mother leading to the probation revocation charges, a copy of the affidavit for
arrest warrant, the arrest warrant and other miscellaneous papers from the state court revocation
proceeding.

3

On March 13, 2018, Respondent Gilkey filed a Response.

Doc. 5.

Respondent argues that: (1) Day was admitted to the Arkansas State Hospital on
March 7, 2018, making the Petition moot as to Gilkey; and (2) the Petition should
be dismissed for failure to exhaust his administrative remedies.
For the reasons explained below, the Court concludes that Day’s habeas
Petition should be dismissed for failure to allege a cognizable federal claim and to
exhaust his state court remedies.
II.

Discussion

In reviewing a federal habeas petition, a court must summarily deny relief “if
it plainly appears from the petition and any attached exhibits that the petitioner is
not entitled to relief.” Rule 4 of the Rules Governing § 2254 Cases in the United
States District Courts (applicable to § 2241 petitions under Rule 1(b)); 28 U.S.C. §
2243.
State law issues not cognizable
Generally, state law issues cannot be raised in a federal habeas petition. See
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); ); accord Swarthout v. Cooke, 562
U.S. 216, 131 S.Ct. 859, 861 (2011). “[I]t is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions. In conducting
habeas review, a federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States.” Estelle, 502 U.S. at 67–68.
4

Thus, this Court is without power to adjudicate alleged errors of state law that
do not rise to the level of a constitutional violation. Even assuming, however, that
Day had alleged a violation of a federal right within the power of this Court to
address, dismissal would still be appropriate.
Failure to Exhaust
Before a state prisoner can seek federal habeas relief, he ordinarily must
“exhaust[t] the remedies available in the courts of the State.”

28 U.S.C. §

2254(b)(1)(A), thereby affording those courts “the first opportunity to review [a
federal constitutional] claim and provide any necessary relief” for alleged violations
of a prisoner’s federal constitutional rights. O’Sullivan v. Boerckel, 526 U.S. 838,
844-45 (1999). State remedies are not exhausted if a petitioner “has the right under
the law of the State to raise, by any available procedure, the question presented.” 28
U.S.C. § 2254(c). The exhaustion requirement imposes on state prisoners the
obligation, before seeking federal habeas relief, to “give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of
the State’s established appellate review process.” O’Sullivan, 526 U.S. at 845.
The exhaustion requirement applies to § 2241 habeas petitions challenging a
pending or future state criminal conviction, as well as habeas petitions challenging
a final state court conviction. Sacco v. Falke, 649 F.2d 634, 635-37 (8th Cir. 1981);
Davis v. Muellar, 643 F.2d 521, 525 (8th Cir. 1981).
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In addition, “[a]bsent

extraordinary circumstances, federal courts should not interfere with the states’
pending judicial processes prior to trial and conviction, even though the prisoner
claims he is being held in violation of the Constitution.” Sacco, 649 F.2d at 636
(quoting Wingo v. Ciccone, 507 F.2d 34, 357 (8th Cir. 1974)).
Because the criminal revocation charges are still pending and unresolved, Day
has the opportunity to litigate in state court any federal constitutional claims,
including challenging the Yell County Circuit Court’s Commitment Order.5
As to any federal claims that might be cognizable in this Court, Day has failed
to demonstrate that existing state procedures are ineffective to protect his
constitutional rights or that extraordinary circumstances exist warranting federal
intervention with a pending state court judicial proceeding. Thus, Day’s habeas
Petition should be dismissed, without prejudice. Day is free to file a new Petition
for Writ of Habeas Corpus, in a new action, after he fully exhausts his remedies at
every level of the state court system.

5

Arkansas law provides that “[i]f the finding of the report is contested, the court shall hold
a hearing on the issue of the defendant’s fitness to proceed.” Ark. Code Ann. § 5-2-309(c) (Supp.
2017). From a review of the docket in the revocation proceeding, it does not appear that Day has
ever attempted to contest the Yell County Circuit Court’s finding on Day’s lack of competency.

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III.

Conclusion

IT IS THEREFORE RECOMMENDED THAT Petitioner Michael Day’s
Petition for Writ of Habeas Corpus, Doc. No. 1, be DENIED, and that the case be
DISMISSED in its entirety, without prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be
DENIED. See 28 U.S.C. § 2253(c)(1)-(2); Rule 11(a), Rules Governing § 2254
Cases in United States District Courts.
DATED this 5th day of April, 2018.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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