Kemp v. Hobbs

Filing 101

ORDER granting 75 Motion for Reconsideration. The aspects of the Court's 68 Order that state that ineffective assistance of postconviction counsel can never excuse procedural default are vacated. Claims I.H, VII, VIII, XIII, XIV, XV, and XVI1, which the Court decided on the merits, remain denied. Signed by Judge D. P. Marshall Jr. on 3/17/2014. (jak)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION PETITIONER TIMOTHY WAYNE KEMP v. No. 5:03-cv-55-DPM RAY HOBBS, Director, Arkansas Department of Correction RESPONDENT ORDER In June 2012, the Court dismissed some of Kemp's claims on the merits and rejected three of Kemp's arguments for excusing procedural default on some of his remaining claims. NQ 68. On the default issue, the Court held that ineffective assistance of counsel during initial collateral proceedings cannot constitute cause to excuse an alleged procedural default. NQ 68 at 27-28. Since the Court's decision, however, the United States Supreme Court has decided Trevino v. Thaler, 133 S. Ct. 1911 (2013), which changes the law about procedural default and ineffectiveness claims. Kemp now moves for the Court to reconsider its June 2012 Order. In light of the changed precedent, Kemp's motion for reconsideration, NQ 75, is granted. In Martinez v. Ryan, 132 S. Ct. 1309 (2012), the Supreme Court held that a procedural default does not bar a federal court's habeas review of substantial claims of ineffective assistance of trial counsel, if, during the initial collateral proceeding, there was no counsel or counsel was ineffective. Trevino extended the Martinez exception to apply in situations where postconviction proceedings are the first meaningful opportunity to raise a substantial claim of ineffective assistance of trial counsel. Following Trevino, the Supreme Court vacated and remanded Dansby- an Eighth Circuit case upon which this Court's June 2012 Order relied -leaving open the possibility that the Martinez/ Trevino exception applies in Arkansas. Dansby v. Hobbs, 133 S. Ct. 2767 (2013). And the Eighth Circuit has since held that the Trevino/MartinezexceptiondoesinfactapplyinArkansas. Sasserv.Hobbs,735 F.3d 833, 851-54 (8th Cir. 2013). The Court will apply Martinez and Trevino to the facts of Kemp's case when it determines whether cause exists to excuse Kemp's procedurally defaulted claims. The aspects of the Court's Order, NQ 68, that state that ineffective assistance of postconviction counsel can never excuse procedural -2- default are vacated. Claims I.H, VII, VIII, XIII, XIV, XV, and XVI1, which the Court decided on the merits, remain denied. So Ordered. D.P. Marshall Jr. (/ United States District Judge The motion for reconsideration refers to claims in Kemp's First Amended Petition, NQ 36. The Court has since allowed Kemp to file a second amended petition, NQ 81, but notes that the Claims are numbered the same. The Court will rule on Kemp's second amended petition when it determines whether cause exists to excuse his procedural default. 1 -3-

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