Madden v. Arkansas, State of

Filing 3

REPORT AND RECOMMENDATIONS that 2 Petition for Writ of Habeas Corpus filed by Lee Madden, be DISMISSED WITHOUT PREJUDICE, and 1 MOTION for Leave to Proceed in forma pauperis be DENIED AS MOOT; Objections to R&R due 10/27/09. Signed by Magistrate Judge Beth Deere on 10/13/09. (vjt)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION L E E MADDEN, JR. A D C #136534 v. CASE NO.: 5:09CV00310-SWW-BD P E T IT IO N E R

L A R R Y NORRIS, Director, A r k a n s a s Department of Correction R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections:

RESPONDENT

T h e following recommended disposition has been sent to United States District J u d g e Susan Webber Wright. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 1

For the reasons that follow, the Court recommends that the District Court dismiss P e titio n e r's Petition for Writ of Habeas Corpus (#2) without prejudice pursuant to Rule 4 o f the Rules Governing Section 2254 Cases, as an unauthorized second or successive p e titio n . II. B ackground O n July 10, 2006, Petitioner Lee Madden, Jr. entered a plea of guilty in Desha C o u n ty Circuit Court to charges of aggravated robbery, theft of property valued at $2,500 o r more, and possession of a firearm by certain persons. In a judgment and commitment o rd e r filed July 17, 2006, the Circuit Court sentenced Petitioner to serve three hundred m o n th s on the aggravated robbery charge and to two-hundred-forty months on the theft of p ro p e rty and firearms charges, with all of the sentences to run concurrently. (#2 at p.1) O n March 3, 2008, Petitioner moved for leave to proceed with a belated appeal in th e Arkansas Supreme Court. On April 10, 2008, the Court denied the motion on the g ro u n d s that it did not have jurisdiction to hear an appeal because Petitioner's case did n o t fall within an exception to Ark. R. App. P. Crim. 1, which provides that there is no rig h t to a direct appeal after entering a guilty plea. Madden v. State, No. CR 08-272, 2 0 0 8 WL 963666, at *1 (Ark. April 10, 2008). On March 6, 2008, Petitioner brought a petition for writ of habeas corpus under 28 U .S .C . § 2254. Madden v. Jackson, No. 5:08CV00059 (E.D. Ark. June 11, 2008). Petitioner raised several claims in his petition including a claim that he should be

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permitted to file a motion to withdraw his guilty plea because he lacked "legal knowledge a n d education" when he pleaded guilty to all of the charges. In his Petition, he a c k n o w le d g e d that he had not raised any of these claims with the trial court by filing a tim e ly petition under Ark. R. Crim. P. 37.1, but he blamed the failure on a "lack of e d u c a tio n and legal knowledge." Further, Petitioner acknowledged that his habeas petition was not timely. The C o u rt granted the Respondent's motion to dismiss the petition because the claims were b a rre d by the statute of limitations. In his current Petition (#2), Petitioner claims: (1) he was "mentally retarded" w h e n he pleaded guilty; (2) he was slapped unconscious at the Varner Unit; (3) he " e x p e rie n c e d hate crime" while at the Varner Unit; and (4) he is innocent. III. S e c o n d or Successive Petition T itle 28 U.S.C. § 2244(b)(1) requires dismissal of any § 2254 claims that were p re s e n te d in a prior habeas petition. A petitioner attempting to bring a "second or s u c c e s s iv e " federal habeas petition challenging a state-court conviction must first "move in the appropriate court of appeals for an order authorizing the district court to consider th e application." 28 U.S.C. § 2244(b)(3)(A). A panel of the court of appeals may authorize the filing of a successive petition " o n ly if it presents a claim not previously raised that satisfies one of the two grounds a rtic u la te d in § 2244(b)(2)." Burton v. Stewart, 549 U.S. 147, 153, 127 S.Ct. 793, 796

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(2007). A § 2254 claim presented in a second or successive petition, which was not p re s e n te d in a prior petition, must be dismissed unless: (A) the applicant shows that the claim relies on a new rule of constitutional law, m a d e retroactive to cases on collateral review by the Supreme Court, that was p re v io u s ly unavailable; or (B) (i) the factual predicate for the claim could not have been discovered p re v io u s ly through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the e v id e n c e as a whole, would be sufficient to establish by clear and c o n v in c in g evidence that, but for constitutional error, no reasonable f a c tf in d e r would have found the applicant guilty of the underlying offense. 2 8 U.S.C. § 2244(b)(2). The district court is without jurisdiction to consider a successive p e titio n until authorized by the court of appeals. Burton, 549 U.S. at 153. Petitioner's claims that he was slapped and was the victim of a "hate crime" while a t the Arkansas Department of Correction's Varner Unit are claims regarding his c o n d itio n s of confinement and are not cognizable in a habeas corpus action. See 28 U .S .C . §2254. Petitioner's claim that he was mentally retarded when he pleaded guilty to the c h a rg e s challenges the same judgment he challenged in his first habeas petition and is s im ila r to his claim that he should be allowed to withdraw his plea because he lacked " le g a l knowledge and education" sufficient to enter a plea. Petitioner's claim that he is in n o c e n t challenges the same judgment he challenged in his first habeas petition, but this a p p e a rs to be a new claim.

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Petitioner has not sought authorization from the Eighth Circuit Court of Appeals to b rin g either claim in a successive petition. Accordingly, this petition requires prior a u th o riz a tio n by the Eighth Circuit Court of Appeals under § 2244(b). The Court is w ith o u t jurisdiction to consider the claims until the Eighth Circuit grants Petitioner leave to proceed. See Burton v. Stewart, 127 S.Ct. at 796 (concluding a habeas application f ile d after a previously adjudicated application was a second or successive application, w h ic h had not been authorized by the appropriate court of appeals, and thus the district c o u rt lacked jurisdiction to entertain it). IV . C o n c lu s io n T h e Court recommends that the District Court dismiss the Petition for Writ of H a b e a s Corpus (#2) without prejudice for lack of jurisdiction pursuant to Rule 4 of the R u le s Governing Section 2254 Cases and deny the Motion for Leave to Proceed In Forma P a u p e r is (#1) as moot. D A T E D this 13th day of October, 2009.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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