Carter v. Hobbs

Filing 12

ORDER denying docket entry # 9 Petitioner's Motion to Stay. Signed by Magistrate Judge J. Thomas Ray on 07/28/2011. (ksm)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

NICKOL E. CARTER
ADC #146315

VS.

PETITIONER

5:10CV00346 JMM/JTR

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT

ORDER
On December 3, 2010, Petitioner, Nickol E. Carter, initiated this 28 U.S.C. §
2254 habeas action. (Docket entry #2). Carter asserts various claims attacking his
December 1, 2009 guilty plea, in Pulaski County Circuit Court, to several counts of
aggravated robbery and being a felon in possession of a firearm.
On February 23, 2011, Carter filed a Motion requesting that this action be
stayed so that he could pursue an error coram nobis petition in the Arkansas Supreme
Court. (Docket entry #9). In support of his request, he relies on information contained
in the underlying Little Rock Police Department investigative files. According to
Carter, he obtained copies of those files in January of 2011, in response to his
Freedom of Information Act request.
Carter argues that the prosecution failed to disclose to him certain information

contained in those files: (1) a January 20, 2009 “Report of Fingerprint Analysis”
showing that one of his known thumb prints matched a latent print lifted collected
from a cup at the crime scene;1 (2) a November 17, 2009 “Fingerprint Comparison
Request” showing that fingerprints obtained from a door at the crime scene did not
match known prints from Carter;2 and (3) DNA evidence from a cigarette butt found
at the crime scene that did not match a known DNA sample from Carter.3 Carter
contends that the prosecution did not disclose this information to him in violation of
his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), and somehow
coerced his guilty plea.
The United States Supreme Court has held that, under the AEDPA, a district
court has discretion to “stay and abey” a mixed habeas petition of exhausted and
unexhausted claims, while a petitioner returns to state court to exhaust his
unexhausted claims. In Rhines v. Weber, 544 U.S. 269, 278 (2005), the Court
explained that habeas petitions may be stayed, rather than dismissed, “if the petitioner
had good cause for his failure to exhaust, his unexhausted claims are potentially
1

The fingerprint evidence was from a November 15, 2008 robbery of a Subway
restaurant.
2

The fingerprint evidence was from a December 5, 2008 robbery of a Simmons
bank branch.
3

The cigarette butt was found near a suspect vehicle used in a January 2, 2009
robbery of a Simmons bank branch.
2

meritorious, and there is no indication that the petitioner engaged in intentionally
dilatory litigation tactics.”
The Rhines factors do not weigh in favor of a stay in this case. Even assuming
that the evidence Carter cites was not disclosed to him, he fails to explain how it
would establish that his guilty plea was coerced, or how the nondislcosure would
constitute a constitutional violation in light of his guilty plea. See United States v.
Ruiz, 536 U.S. 622, 628-33 (2002) (failure to disclose impeachment information to a
defendant who pleaded guilty was not a due process violation under Brady because
the guilty plea waived the right to a “fair trial” and “accompanying constitutional
guarantees” — “the Constitution does not require the Government to disclose material
impeachment evidence prior to entering a plea agreement with a criminal defendant.”).
Furthermore, he has not been diligent in pursuing his alleged coram nobis claim at the
Arkansas Supreme Court. As of this writing, the Clerk of the Arkansas Supreme Court
has confirmed that Carter has not filed a Petition requesting coram nobis relief.
IT IS THEREFORE ORDERED THAT Petitioner’s Motion to Stay (docket
entry #9) is DENIED.
Dated this 28th day of July, 2011.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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