Lowe v. Hobbs
ORDER denying 20 Petitioner's Motion to Clarify; denying 21 Petitioner's Motion to Appoint Counsel; denying Petitioner's 24 Motion to Amend/Correct. Signed by Magistrate Judge J. Thomas Ray on 09/12/2014. (kcs)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JAMES ROBERT LOWE
RAY HOBBS, Director,
Arkansas Department of Correction
In this § 2254 habeas case, Petitioner attacks his November 2, 2009
conviction for possession of drug paraphernalia. On August 15, 2014, Petitioner
filed a Motion requesting leave to amend his Petition.1 Doc. 24.
Petitioner seeks to add new habeas claims that collaterally attack his
December 16, 1996 conviction for first-degree sexual abuse. As to the December
16, 1996 sexual abuse conviction, he argues that: (1) it violated the Arkansas
Speedy Trial Act; and (2) his lawyer provided ineffective assistance of counsel
when he advised him to plead guilty despite the alleged speedy-trial violation.
Although Petitioner has flattened his sentence from the December 16, 1996 sexual
As a general rule, leave to amend “shall be freely given when justice so requires,” see Fed. Civ. P. 15(a).
However, the Court may disallow amendment for various reasons, including “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.” Moore-El v.
Luebbers, 446 F.3d 890, 901-902 (8th Cir. 2006) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
abuse conviction, he argues that the conviction was used to enhance his sentence,
as a habitual offender, in the November 2, 2009 drug paraphernalia conviction.
Petitioner’s proposed amendment is futile. The United States Supreme Court
has held that where a prior state court conviction and sentence has expired, but is
later used to enhance a sentence in a subsequent state court conviction, a habeas
petitioner cannot collaterally attack the expired conviction and sentence in a §
2554 case challenging the current conviction and sentence. Lackawanna County
Dist. Attorney v. Coss, 532 U.S. 394, 401–02 (2001). Thus, his Motion for Leave
to Amend will be denied.
Petitioner has also filed a “Motion to Clarify” (doc. 20) requesting
reconsideration of the Court’s September 9, 2013 Order denying his requested
discovery, and a renewed Motion for Appointment of Counsel (doc. 21). Those
Motions will denied for the same reasons stated in the Court’s earlier Orders (docs.
5 and 19) denying those same requests.
IT IS THEREFORE ORDERED THAT Petitioner’s Motion to Clarify (doc.
20), Motion for Appointment of Counsel (doc. 21), and Motion for Leave to
Amend (doc. 24) are DENIED.
Dated this 12th day of September, 2014.
UNITED STATES MAGISTRATE JUDGE
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