Maxwell v. White

Filing 80

ORDER re 79 MOTION for Order filed by Robert T Maxwell. The Clerk of the Court is directed to send the Attorney General a copy of the motion for relief of judgment. The Attorney General is directed to file a response within 30 days of the date of this Order. Signed by Judge James M. Moody on 6/5/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ROBERT T. MAXWELL
VS.

PLAINTIFF
CASE NO. 5:09CV00111JMM

D. WHITE

DEFENDANT

ORDER
Petitioner has filed a Motion for Relief From Judgment (#79). In the motion, Petitioner
contends that a recent change in the law found in Martinez v. Ryan, 132 S.Ct. 1309 (2012)
requires that the denial of his 28 U.S.C. § 2254 petition be set aside and he should be able to
raise the issue of his ineffective assistance of counsel in a successive § 2254 habeas.
Martinez holds that an ineffective-assistance-of-trial-counsel claim that has been
procedurally defaulted because of a state-law requirement that it be raised at the initial state
collateral review proceeding could nevertheless be heard by a federal habeas court if the
defendant was not represented by counsel, or received the ineffective assistance of counsel, at
the state collateral proceeding. Id. Martinez qualified Coleman v. Thompson, a 1991 Supreme
Court case, which held that an attorney's errors on appeal from an initial-review collateral
proceeding do not qualify as cause for a procedural default. See Coleman v. Thompson, 501
U.S. 722, 757, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Thus, it appears the Supreme Court

has changed the law on procedural default in habeas cases.
Petitioner filed his initial 28 U.S.C. § 2254 in April of 2009 claiming ineffective
assistance of trial counsel. The petition was denied in December of 2009 finding that Petitioner
had procedurally defaulted this issue at the state level when he failed to file a timely Rule 37
motion. The Court of Appeals for the Eighth Circuit affirmed the denial in February of 2011.

In his present petition, Petitioner states that he filed his Rule 37 motion pro se. Based
upon the allegations contained in the motion and the change in the law, the Court finds that it
would be helpful for the State of Arkansas to file a response to the pending motion. See also
Williams v. Hobbs, 685 F.3d 842, 853 (8th Cir. 2011) (“Where a claimant could not have raised a
claim in his first habeas petition because it had not yet arisen, he will be allowed to seek a
second habeas petition without first obtaining our authorization.”).
The Clerk of the Court is directed to send the Arkansas Attorney General a copy of the
Motion for Relief of Judgment. The Arkansas Attorney General is directed to file a response
within 30 days of the date of this Order.
IT IS SO ORDERED THIS 5

day of

June , 2012.

James M. Moody
United States District Judge.