Scott v. Hobbs

Filing 5

ORDER adopting and approving 3 the recommended disposition; dismissing, without prejudice, 2 Plaintiff Willie Scott's Petition for Writ of Habeas Corpus; and denying a certificate of appealability. Signed by Chief Judge Brian S. Miller on 3/11/2013. (kdr)

FILED

U.S. DISTRICT COURT
EASTERN DISTFICT /\!~KANSAS

IN THE UNITED STATES DISTRICT COURT
MAR 11 2013
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JAMES
By:_,£.~~~~-ru::P-r.ti=f~

WILLIE SCOTT
ADC #70908

v.

PETITIONER
CASE NO. 5:13CV00053 BSM

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT
ORDER

The recommended disposition filed by Magistrate Judge Beth Deere has been
reviewed, along with the objections filed by Willie Scott. After careful consideration and
conducting a de novo review of the record, it is concluded that the recommended
disposition should be, and hereby is, approved and adopted in its entirety in all respects.
Scott's petition for writ of habeas corpus [Doc. No.2] is dismissed without prejudice.
When entering a final order adverse to a habeas corpus petitioner, a certificate of
appealability must be issued or denied. Rule 11, Rules Governing Section 2254 Cases. A
certificate of appealability can be issued only if a petitioner has made a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)( 1)-(2). Mr. Scott has
not provided a basis upon which to issue a certificate of appealability. Accordingly, a
certificate of appealability is denied.
IT IS SO ORDERED this lith day of March 2013 ·~

~--)3

...._

~~

~UNITED STATES DISTRICT JUDGE

PETITION UNDER 2S' USC § 2254 FOR WRIT OF
HABEAS CORPUS DYA PERSON IN STATE CUSTODY

Mi 2oi1.
REV

6 82

1

PETITION
1. Name and location of court which entered the judgment of conviction under auack

. 6
2.

r J?\1\\tJ..S ki c: 6,

D~;tte of judgment of conviction

u\~k4,J Stt S 1 f~t,'?> + j); v{·;u otJ
\)

e C...·

S"".

l '19 \

eitS:, u/ t

i'- r\bd; EYe_J 'f).p"'-; \

L;D u t"' t

bt 19 ? 'J..

3. Length of sentence----""b;:;._::;;D;...;X'--rS.;::;.....;;....- - - - - - - - - - - - - - - - - - - - - - -

~ G1. 6- r ct [} ~ i e...cl
5·re..ctr>WL ~}" Ce_v-+<.\ii\J p~Y..soJ

4. Nature of offense· involved (all counts)

R bbe l-AY,
()

n.ts ease ·.osigned to Distritt

pb s ~
t.'l

S) /<:liJ

() (;.

~

5; What was your plea? (Check one)
and to Magistrate Judge
.
.. ·
(a) Not guilly
~/
(b) Guilty
llJ"
(c) Nolo contendere
0
It' you entered a guilty plea to one count or indictmenr, and a not guilty plea to another count or indictment, give details:

· 6. Kind of trial: (Check one)
(a) Jury·..
(b) Judge only

0

lB""'

7. Did ~~testify at the triaW
Yes,MNo 0 ..

.

8. Did you appeal from the judgment of conviction?
Yes DNo~
·
·
. · ·.' . . ·

110.241.
REV 6'82

.

9. If you did appeal, answer t.he following:
(a) Name of c o u r t - - - - - - - - - - - - - - - - - - - - - - - - - - - - (b) Result - - - - - - - - - - _ _ _ , . - - - - - - : - - - - - - - - - - - - - - -

(c) Date·of result~----:--------:-~-----------------

(d) Gn:mnds raised

10. Oiber lltail a direct appea~ from the judgment of conviction and sentence, have you previou$1y filed any petitiQns.
applica!lons. or motions. with respect to this judgment if) any court, state or federal?
Yes &rNo 0
11. If your answer to 10 was "yes," give the following information:.

(a) (l) Name of coun C

,'bt:H/ f

(2) Natureofproceeding

GOLM··± D '{}

Pet.,·..J-JoiJ

Th-e :A.li--er,Vct+i r..e..,

tP14l~S fl Cn ,

ED'f' I)a.c.:flit';>JV

P~+ttloN Po r--

bt' 6 f. D v,
/

or S.eN±-eJvC-e? eft l:.tJ

A-

Ill eta

tviql

S<g n~+tfll c. e • be..Pr: I v.cLJ b 4 ~ PY' o <- e .s·s 1
R'Sh± :ko)'tJal ~~ R,g"}:tt~q.l ±o ~tLow. Pteg. w,':kh,Df\awrv'
1

(3) Grounds raised

F/les a.l

(4) Did YoU receive an evidentiary hearing on your petition: application

Yes 0
(5) Result

No &;}"""

:

·

or motion?
·

---=b::. .:e: :. ;fi):. ;. .L. .:ejJ: ; : :;cl: : . -. . .:~. :. .; ;. ~U:;.:.:!I);. . !f.c. . :.•. .:t'i\....:..e::::::..:riJ-------------.'

(6) Date of rcsuh _ _ _ _ __.e..:./;}..:::;::_-_)wg=L-.~-t.J:....;b::::,.__ _ _ _ _ _ _- " - - - - - (b) As to' any second petition. application or motion give the 'same· information:

'4

•

0

i\0 2~1
llllV f/82

0) Grounds r.U~ed - - - - - - - - - - - - - - - - - - - - , . . . . - - - - - - - - - -

(4) Oid you receive an evidentiary hearing on your petition, application or motion?

.YesO No 0
(5) Result - - - - - - - - - - - - - - - - - - - - - - - - - - - - (6) Date of result - - - - - - - - - - - ' - - - - - - - - - - - - . . , . . . . , . . - - - - - - - - (c) As to any third petition, application or motion, give the same information:
(l) Name of c o u r t - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (2) Nature of proceeding - - - - - - - - - - - - - - - - - - - - - - - - - - (3)

Groundsws~ ----------------------------------------~----

(4) Did you receive an evidentiary hearing on your petition, application or motion?
0 No 0
(S) Result - - - - - - - - - - - - - - - - - - - - - - . . . , . . . . , . . . . - - - - - - Ye~

(~) Date of result - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

(d) Did you appeal co the highest state court having jurisdiction the result of action taken on ~ny petition, application or
~~
.
.
:
(l) First petition, etc.
Yes [] No iY""
(2) Second peiirion, etc.

Yes 0

No

0

(3) Third petidon, etc.
Yes 0 No 0
(e) if you did not appeal from the adverse action on any petition; applicalion or motion, explain briefly why you did nor:

rtlot- i\dv,·.se..d Ot

i~2eC\\

F

Pt-e C-€_SS

Gr 8.CA!e .t57

;

12. Statccottcisely every ground on which you claim that you are being held. unlawfully. Summarizebriefl>' thefitcls supporting
ground, If necessary, you may attach pages stating additional grounds and.fc1m supporting same., ·
.QMJQt~!J!!Elr~~!2Jll'!~~!!~!!U!~J~~·~.J£~!~·~!.~· ·
first exhaust your uv;1iluble state court remedies

·

ruu-- 1or1h1tii-~:~~~:. ~.n:!~!~·petlii!i~.:y~~\!'!?~ ·

i\0 241

REV lJB2

Foryoudnformation, the following is a.Jist of the most frequently raised grounds for relief h1 habeas corpus p~OC~edings.
Each statement preceded by a letter constitutes a separate ground foqossible relief. You m11y raJse any gr<>unds which you
may have other than those listed if you have exhausted your state couro-emedies with respecuo them. However,yol,l should
raise in thisp~litionallavailable grounds (relating to this cl)nviction) on which you base your allegations lltatyou are being
held in c::ust~y unlawfully. . .
.
Do not check any of these listed grounds. If you select one or more· of these grounds for relief, you must allege facts. The
·PC~itic:m will be returned to YoU if you merely check (a) throogh G> or any one of these grounds.
(a) Con.viction obtained byplea'ofguilty which was unlawfully induced or not made volunt<»ily with understanding of the
nature of the charge and the conseq\lelices of the plea.
{b) CollV,iC:tion obtained by use o(CQCr(;ed 'confession.
_
. (c) Convlctioo obtained by use ohvidence gained pursu.ant ·to an unconstitutional search and seizure.
(d)· Conviction obtained by use of evidence obtained pursuant to an unlawful arrest~
(e) Conviction obtained by a violation of the privilege against self-incrimination.
(0 Convic:(iO(I obtained by the unc:,onstitulional failure of the prosecution to disclose to the defeildantevidence favorable to
the defendant.
(g) Conviction obtained by a. violation of the protection against double jeopardy.
(h) Conviction obtained by .action of a grand or petit jury which was unconstitutionally selected and impaneled.
(i) Denial of etfet::tive assistance of counsel.
(j} Denial of right of appeal.

fi}\\\i£ £cof-=k S?h:J G.u; \±Y, J\eJ\) ~he. ${q{€. O'Rq\Ly
\4. fl\ RA>c.\ e.J. to('\ y>\a j 11)± To f.\.\) b l:\ ct\ot' }vtct\ S {..t£+4~ .

A. Ground one:

Supporting FACTS (tell your story briefly without citing cases or law):.

The

L,.O\.JHr~t

'A-iPIY-eJ

Htt~! -l-4utl S:htt{Lt,&

~· <S. t!. EX- t1 S - b )
Effe.c+i VI~ RgnJJ~V'r'l\!3

.SecY\-=h

B. GIOllnd two:

..

eeo

'<! ()Ulf' +14 rTJ k9 d. ·CctJ@.eL
W~n·\~Y J\\-.}cvJdollle..d <:3coi-~s \)eferJS'e :[:4J Jt)o t- !1ov/rv,] 1-b Sr..,fPCJt:fS.cDi-1-s WtTh 1t'f't.twq,l bt Plect ~:f:k_v- ~ab:±utt[ tJtc:f. ~f~Secl".
Sco-f--b rleJGu~· fi;Y ±r> e_~ri"\e. w; i-t: tt:NJe~S{a.Mt1vJA>ll_l/ahtl:~.tal
~>tts:t:!,pes~J. 4>ke.P C~v.v-i SyPt<lS~ .Sc~++·ko;M·_'vJ~+. :t.3,; .·
Cvu10 &e: I lA'\ a.d e ,& D ~frec..+'fo He l ~"nt th 'br-.t£W)i-'·pt:e;q:::;&:5:wh·,S1£~
.
Supporting FACTS (tell your story briefly without citing cases or law):

.

.

.

.

·~

~

AO 2~1
REV (/82

See. ~'/.. ,. (¥\. l'>J L.6L4v:\- t:>N Ly ~t--t€.~ Jj'
()tf,nJS e I f\tt,sl e r\} 0 E' F Fo v- +- =\ (} \,\e.,\ r Q 'f'

c.

'ft~Lll~'R. Sec 1-+ () 17- ~L\.t 'E:aS to..v);f ;:uu'J C'641V3s: \ ~

Supporting FACTS (tell your story briefly without citing cases or law):

3'7., l\ecMA5 e_

f/ze.. CaMRUa.vl- {i

Qui\C{ Qg}'elt"S j-o
::£..1{f

,31> d 4

~£JMet~{A)j

·tAll.±

34YS '+lt)e~'fe-<:.:\;-W<. <!:ot~nJSe.(

y.s \\.

D. Gwl:lttdfour - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Supportin~

FACTS (tell your ~tory briefly without citing cases or law):

13. Ifapy oftbe grounds listed in 12A, B, C, and D were not previously presente4 in any other<,:ourt, state or federal, state briefly
what grounds were not s9 presented, and give your reasons for not pre~nting them:
· ·

14. Do yo11 bllVC any petition or appeal now pending in any court, either state or federal, as to thejudgmeru under auack?
fuO~~

.

.

..

15. Give the name and address, if known, of each attorney who represented you in the following stages ofthe jucJgment a,ttacked
· herein:
"' J
·
·
(a) At preliminary bearing
IV. I~

A0241

asvtm
(c) At trial

(d) At

~entencing _ ___.(/fit~,.:!l- !. . :r~: . .-. ~1" "'1-')-1-(. J. . (~Ir". . .~4a-z. :f.'Y. l-. \~ili~k-~oL.L-w=-'rQc..::;._____________

<0 In any past-conviction proeeeding _ _ _ _ _ _ _ _
,_Vr-/"""·'/1_..___~----------:------

(g) On appeal from any adverse ruling in a post·conviction proce-eding

--'-M__,_/_4_,____________

16. Were you sentericedon more than one count of an indictment, or on more. than one indictment, in the same court· and atthe
s~ine time?
Yes ~No 0

17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack?
•o~~
(a) If s~, give name and IQGation of court which imposed sente!lce to be served in 1he future:
nlf/9

,;

(b) Give date and length of the above sentence: _ _ _ _ ___./1)-=;
:..../,_/9.....__ _ _ _ _ _ _ _- - : - - - - - 1

(c) Have you filed, or do you contemplate filing, any petitie)nattacking the judgment which imposed the sentence to be

served in the future?
Yes 0

No 0

'(

•
Wherefore, petitioner ptays that the Court grant petitioner relief to which he may be entitled in this proceeding.

!fi)/;r
Signature of Attorney (if any)

I declare under penally' of perjury that the foregoing is lrue and correct. Executed on

3- 1'6- 97
(date)

(7)

IN THE CIRCUIT COURT OF PULASKI C()UN:'{.Y, ARKANSAS
FIRST DI Vl S.l ON ..·CJ Li'- f: -~ .'; .
\ '' ; t: : l !
'~

\.i

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C{h(.~',:

STATE OP ARKANSAS

·t .-{_, i

•

J . :,

IP~t NT:l F FIRES POND &NT
..... ; !

v.

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(,.L_,f:.~//if

CR 91-1292

WILLIE SCOTT

Before the Court

DEFENDANT/PETITIONER

1s

Petitioner Willie Scott's Petition for

Vacatiou of Sentence, or in the Alternative, Petition for New

Trial. and Petition to Proceed In Forma Pauperis.

From the

petitions and all other matters and things pertaining thereto,
this Court doth find,

order, and adjudge:

1.

On November 19, 1991, petitioner entered a plea of
guilty ~6 the charg~s of aggravated robbery and
pos~e•sion of a firearm by certain persons.
On
Dec~~b•t 5, 1991, petitioner was sentenced to 60 years
iri the Arkansas Department of Corre6tion on both
charges to run concurrently.

2.

nn February 11, 1992, petitioner filed a motion for
modification of s~ntenee.
On April 16, 1992, his
senten~Q was modified to 60 years in the Arkansas
Depa~tmQnt of Correction on the aggravated robbery
cha~ge and 8 years in the Arkansas Departm•tit of
Correction on the possession of a firear~ by certain
persons charge to run concurrently.
Petitioner was
given credit for 33 days in jail.

3.

A petition for vacation of sentQnoe is a petition for
post-conviction relief pursuant to Rule 37 of the
Arkansas Rules of Crindnal Procedure.
n.ule '37 requires
that petitions fot post-conviction relief be filed
within 90 days of entry of judgment when a de£endant
pleads guilty.

4.

Petitioner's Petition for Vacation of S.entence, or in
the Alternative, Petition for New Trial, and Petition
to Proceed In Forma Pauperis were filed on May 28,

1996.

Therefore. petitioner's petition• are untimelY·

5.

Petitioner's Petiti~n for Vacation ot Sent~~ce. or Lrt
the Al ter:native, Petition for New TrlaL is hereby
qenied.

6.

Petitioner's Petition to. Proceed ln Formt1 Pauperis is
hereby denied.

IT IS SO ORDERED.
1

•

>

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•• ~

•0'

il

IN THE CIRCUIT COURT OF
COUNTY,

;'

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PULA~K~ ~

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FIRST DIVU1J:()Ii [; f-'; : t ; 55

ARI,<ANSAS,

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CmCUi f COUNTY CLERK
PETITIONER

WILLIE SCOTT,

-vs-

CASE NO.

CR 91-1292

STATE OF ARKANSAS,

RESPONPENT

PETITION FOR VACATION OF SEN'l'ENCE:
OR IN THE ALTERNATIVE, PETITION FOR
A NEW TRIAL

Comes your Petitioner Willie Scott, PRO SE, and respeCtfully
asks this Honorable Court to vc:tcate the sixty years

s~ntence

that

was imJ?osed on him by this Court on December 5, 1991 (CASE NO.
CR 91-1292); or in the alternative, he asks this court to gtant
him a new trial.

In support of this poatition, the Petitioner

states and shows the following:
1

PRELIMINARY STATEMENT
On December 5, 1991, this Cqurt sentenced the Petitioner
to sixty (60) years imprisonment for the alleged c.t;imes ()f (1)
Aggravated Robbery and (2)

Possession of a Firearm, respectively,

in violation of Arkansas Statute/Code 5-12-103 and 5-73-103.
The sentence was imposed upon Petitioner under the guise of his
guilty plead to both charged offenses; and so done over his
- 1 -

GP

A.. Z

repeated, in essence, objections;

thus, and nevertheless; this

court has lawful jurisdiction over this petition.

and

That , before

throughout: the sentecing phase of this subject matter at bar,

the Petitioner a poverty stricken person was represented by
·court-af?pointed attorney, Honorable William. M. Brown.
Petitiont!r 1 s poverty

stat~

That,

of being still holds real, as the

hereto attached in FORMA PAUPERIS declaration will verify.
Petitioner also would to impress upon thi.s Honorable Court, the;
tact that he is lowly educated, along with being g;uite unlearneCI.
in the science/field of law.
11.

THE TRIAL COURT IMPOSED AN ILLEGAL SENTENCE
OF SIXTY YEARS UPON PETITIONER,

BY AND WHEN

THE TRIAL COURT DEPRIVED PETITIONER OF HIS
DUE PROCESS RIGHT TO A JURY TRIAL
ON THE TWO CRIMINAL COUNTS rt'HAT HE WAS
PROSECUTED ON.
Petitioner submits that on March 2, 1991, he was arrested
and jailed, anCI. su}::)sequent1y on May 29, 1991, he was charged with
the crimes of aggravated robbery and possession of a

firea~m.

Petitioner's crime partner, Billy Don Jarrett, was also charged
wi th•· possession of a firearm on that same date of May 2 9, 19 91;
however, co-crime partner, Jarrett was later o.n exonerated of
the alleged crime.

That, interval of the date that Petitioner

was arrest.ed and charged with the two {2) counts and, his f.irst
appearance before this Court (Honorable Floyd J. Lo.fton.) on
November 19, 1991, counsel was appointed to
- 2 -

U~Petitioner

by this

bX

lf.3

court.
Petitioner submits that after which time that his attorney
had learned and informed Petitioner that Judge Lofton was the
Judge assigned to preside over Petitioner's case, along with
Petitioner's attorney having briefed Petitioner concerning

th~

mitigating factors of the two counts charged to Petitioner-and
afterw~rds

suggested that perhaps it being more beneficial to

Petitioner to plead guilty to both counts and be given a sentence
{number of years) by Judge Lofton rather than chance going before
a jury: thereupon, the Petitioner ultimatly accepted his
attorney's advice, and on November 19, 1991, the Petitioner and
l:lis attorney appeared before Judge Lofton, at which time his
attorney etitered a plea of guilty to both counts on Petitioner's
behalf.
petitioner submits that his court-appointed attorney tried
wit.nout success to get JUdge Lofton to sentence Petitioner that
verY December,5th. date, and as Petitioner had also been lead
to believe by his attorney that Judge Lofton would do so

sh~rtly

afte:r ascertaining (Judge Lofton) that Petitioner's plea of guilty
was solely voluntary.

The Petitioner was furthermore lead to

believe, and be convinced, that it would be Judge Lofton whom
would actually decision what sentence (numbers of years) to give
Petitioner, by and when Judge Lofton declared to Petitioner on
that same December 5th., 1991 date that1 and 'quoting' in
pertinent part from the hearing's transcript, page II:
THE COlJRT: 0 • • • • • My role now is to give him sometime that
I think he needs for punishment for the wrong that he's
committed. ! don't know what I'm going to do but I'd
- 3 -

just as soon hear from these otbc:;r people.

And what.ever

:t do will pr<:>oably be less than what a jury would

(lQ.

so, he's getting g bargain by pleading. .I'm certpin
of that l:;iecause you all have been up here long enough
to know t;hgt if you. plead guilty in thi:;3 court you get
some consiCieration for pleading gtiilty.****Passed
to--Give me a couple of.weeks' time, a Tuesday or
Thursd.ay.
COURT REPORTER: Twelve Three.
THE COURT: Twelve Three Ninety-one at 8:30 for a
hearing, for a presentence hearing." Unquote.
Petitioner submits that not withstanding the fact that he
was-[ultimately, TRICKED]-lead to believe by FIRS.T his attorney,
and, next by .'Judge Lofton, that it would be JUDGE LOFTON whom woUld
decide and impose sentence upon Petitioner-- ['\vhich incidentally,
because of Petitioner's understanding-belief.to that effect, along
with the fact t)'lat he knew from pass experience of having pleaded
guilty and was sentenced by Judge Lofton-him (Lofton) to be a
fair and considerate man and Judge]; Judge Lofton, however, was
surprisingly to Petitioner not the judge seated when the on
December 5, 19Ql date, that Petitioner was ultimately summoned
for to be septenced before/by the Honorable James P. Massie,
Special ( exchc:mge) judge of this Court and, he whom {exchange
Judge Massie) had also been an active attorney for Petiioner's
cri~e partner~

Mr. Billy Don Jarrett.

Petitioner submits that he repeatedly, and timely in advance
of actully appearing before exchange Judge Massie, plainly told
his court-appointed attorney that he no longer wante.d to go
through with his guilty plea before [in particular] exchange Judge
Massie.

Presumably, and after Petitioner's attorney's

refusal/failure to make Petitioner's decision to withdraw his
guilty plea known to exchange Judge Massie" and allowed
~

4 -

(P~:t.ition~r'

actual sixty

s attorney) t.he sentencing proceeding13 to reach
(60)

years s.entence imposed upon

nevert'h.eless, and, well in advance of the

E~b

P~titioner

it~

stage;

phgse o:E the

sentencing hearing, the Petitioner personally made his decision
(change of mind) to witl)draw his guilty plea known to exchange
Judge Mass.ie; nevertheless, exchange Judg!i= Massie blatantly
ignored Petitioner's repeated declaration to him (Massie) to
withdraw the guilty plea, and he (Massie) went ahead on and FORCED
a guilty plea to both criminal counts upon Petitioner; which and
also ddhsequently resulted in the "Little Habitual" Act Punisl)ment
being an additional imposement upon Petitioner; that furthermore,
and afterwards, exchange Judge Massie ultimately FORCED a sixty
{60) years sentence upon Petitioner in violation of Petitioner's
due process right to a jury or court trial on the aggravated
robbery and possession of a firearm charges brought a<.;Jainst him.
The actual part of the proceedings whereas exchange Judge
Massie unjustifiably deprived Petitioner of the right to withdraw
the guilty plea and, therefore also to the due process right to
a jury or court trial on the two (2) counts charged to Petitioner,
went in pertinent part--quoting from the sentencing hearing's
transcript~-as

follows: (Pages

17-1~)

THE COURT; This Court is going to make a determination
and it is very rough on me. But you've proven to me
please. On the basis of what this Court has heard,
this Court has made a determination that you are hereby
sentence(! to be taken by the Sheriff to serve a period
of sixty years in the Department of Correction under
Act 93, which should apply in this circumstance.
THE DEFENDANT: Nhat's that? A C ?
MR. BROWN: No. It's the habitual statute.
THE COURT: You're a habitual, sir. And th~s court,
at least speaking from here, hopes from the standpoint
that it never has the opportunity again to sentence
-

5 -

£X
r4~b
you. Now, according to law, you did enter a plea~enter
a plea.
';PHS DEFENDANT: I want to withdraw it,
THE C.OURT: And at that timeTHE DEFENDANT: I want to withdraw it.
THE COURT: You entered a plea and I know the Judg<;'s
hab;i.t. H~ tells you from the standpoint, "If I sentence
y(}u to l,ife, what 1 s your plea going to be?" You
indi9ated-I a~sume you indicab~d you accepted
responsibility in the belief that what you've don.e will
merit you somethig less than what I gave You evidently.
Now, you do have the ability within thirty days to file
something saying th~t you had ineffectiveness of
counsel. But, as far as this Court is concerned, you
will be in the Department of Correction for the next
sixty years. And I thank you,
MR. BROWN: Thank you, your Honor. M.ay I step aside,
sir?
THE COURT: It is the judgment and sentence of this
Court sixty years in the Department of Correct~on.
(THEREUPON, the sentencing had in the case of the State
of Arkansas versus Willie Scott, CR 91-1292, was
doncluded.)" Unquote.
Petitioner submits, both and as this Court's records clearly
show, that he only made his voluntary plea of guilt to both charged
counts to JUD.GE LOFTON, and not any PLEA-WHATSOEVER to exchange
Judge Massie; therefore, since Petitioner made it timely known
to exchange Judge Massie that Petitioner had changed his mind
about pleading guilty to the two (2) counts PER.IOD1 thus,
Petitioner avers, that exchange Judge Massie then had no
justifiable, or otherwise legal, right to self-impose a guilty
plea on Petitioner, or on behalf of Petitioner, as Judge Massie
"evil eye c:md unequal hand" done so--in inexcusable abuse of his
(Judge Massie) discretion and, in gross violation of Petitioner's
protected due .process right to a jury or court trial on the (2)
criminal counts charged to Petitioner and, to a fair, just,
and impartial court.
W'her~fore,

this case is begging for the gross injustice
- 6 -

Ex·
A· 7.
cQ'mmitment in it to be forthwith corrected, which can only be
dOne by-as be here the Petitioner's prayer of this Honorable
Court,to vacate his sentence; or in the alternative, to g:t:'ant
Petitionera new trial.
11

THE PETITIONER WAS DENIED HIS DUE PROCESS
:RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
Petitioner submits that from the very outset of his
attorney's (Mr. William M. Brown) appointment to represent
Petitioner by this Court, Mr. Brown spent the bulk of his {Mr.
Brown) energy mind conditioning Petitoner to ultimately consent
to him (Mr.Brown) entering a pltla of guilty on Petitioneris behalf
to both criminal counts and, Mr. Brown never once from the date
of his appointment to represent Petitioner -- even made any
attempt to prepare a defense for going to jury trial for
Petitioner.
Petitioner submits that his court-appointed attorney, Mr.
Brown, repeatedly mislead Petitioner into believing things that
never came true, such as that ONLY Judge Lofton would be the judge.
to sentence Petitioner, and that Petitioner would not get no more
than 20 to 40 years at most, as Petitioner plainly told .Mr. Brown
out front, and before appearing before Judge Lofton to enter the
plea of guilty to both

counts, that if the sentence Petitioner

were to be given exceeded 30 years, and at most 40 years, then
for Mr. Brown to withdraw the guilty plea entered on Petitioner's
behalf arid make ready for to represent Petitioner at a jury trial.
Petitioner submits that despite the fact that he had well
- 7 -

in advance, :plainly told Mr. Brown--and the same that Mr. Brown
a~sured

Petitioner that he (Mr.Brown) would do so--that if a

sentence over 40 years at most wert: announced to

b~

given to

Petitioner at the then upcoming sentencing bearing, then for him
CM;r.Brown) to "Withdraw the guilty plea that he (Mr.Brown) had
entered ort Petitioner's behalf and afterwards prepare Petitioner's
case for jury trial;

Mr. Brown outright ineffectively represented

Petitioner, and Petitoner's due process liberty interest right
to a trial by jury on the.two (2) criminal counts charged to
Petitioner, by and·when after exchange Judge Massie had announced
a sixty (60) years sentence for Petitioner, Mr. Brown jU,st stood
silent; and, Mr. Brown, furthermore, clearly showed his
undoubtedly intentional ineffectiveness to properly represent
Petitioner, both and his (Mr.Brown) all along mind set to take-and
allow Judge Massie to take-advantage of Petitioner's low education
and ignorance to the law state of beings, by and when even after
he {Mr.Brown) had left Petitioner choiceless but to personally
let exchange Judge Massie know that Petitioner had at that time
chose to exercise his (Petitioner) due process right to withdraw
from the guilty, plea that Mr. Brown had entered to Judge Lofton
on Petitioner's behalf: Mr. Brown, made the serious ef.fort to
silence Petitioner from attempting to represent his (Petitioner)
own legal interests, by Mr. Brown, in essence, so chiding
Petitioner as the following in pertinent part quote from the
sentencing proceedings transcript-Page 17-declares:
THE COURT: This Court is going to make a determination
and it is very rough on me. But you've proven to ~e
at least that, you know, that you're a danger and you're
going to be a danger out here. So, the Court's going
to give you sixty years.
-

6 -

THE DEFENDANT: How many?
THE COURT: Sixty years. Six o. Maybe next time, if"
you ever get out THE PEFENDANT: I want to withdraw my plea. I want to
withdraw my plea.
THE COURT: Sir?
THE DEFENDANT:
I want to MR. BROWN: Just be quiet.
THE DEFENDANT:
- withdraw my plea.
MR. BROWN: Be quiet.
Be quiet at this time.
[unquote.]

Petitioner submits that Mr. Brown never once time warned,
or advised, the Petitioner that Petitioner could/would be hit
with the Habitual Criminal Act upon a plea of guilt, nor What
the penalty phrase of

the Act cons is ted of:

Petitioner never knew that the Act even

ex~sted

and in fact,
until the very

date that exchange Judge Massie forced the sixty (60) years
sentence upon Petitioner.

Mr. Brown, also refused/failed to

make Petitioner knowledgeable.of Rule 37's, and/or Rule 36.4's
existence, (lndwnat the basis, or full,"provision(s) of the Rule
warrant of an appeal relief nature to Petitioner.

Petitioner submit$

that

at

time

of sentencing

he made

repeated request to withdraw his plea, these same requests were
made to c0unsel.

However, the court, in dictum gtated that an

ineffectiveness of counsel claim could be made within 30 days.
Petitioner requested of counsel to make such claim, however,
· col.lnsel

refused

stating

that he

could not file

a petition

against himself as that would be a confl:ict of interest.

I

informed counsel and requested of the court other counsel to
represeryt me in my quest to withdraw plea which is a crucial part
of the trial proceedings.

Neither counsel or the court provided

- 9 -

me with counsel and the protect ions guaranteed to me by both
State

~nd F~deral

trial.

Constitutions in this critical phase of the

Therefore,

I

was

the process due me at that

den~ed

critical phase of the trial.

Petitioner submits that there is ample proofs presented
here that his court-appointed attorney indeed,
deprived

Petitioner

of

that

due

effective

and in fact,
assistance

of

counsel's representation as prescribed by State and Federal
law;

therefore,

on

this

ground

alone,

and/or

also,

th.is

Honorable Court should consider outright vacating Petitioner's
sixty

(60)

years

sentence,

in

or

the

alternative,

grant

Petitioner a new trial forthwith.

WHEREFORE,

the

Petitioner

respectfully·

requests

this

Honorable court for the relief soughted herein.

Respectfully submitted,

'

'J
\

.

/S/tJ~ ~
.

.

WILLIE SCOTT; PETITIONER

A"DC # 70908
MAXIMUM SECURITY UNIT
2501 STATE FARM ROAD
TUCKER, AR., 72168~9503

- 10 -

CERTIFICATE OF SERVICE

I, Willie Scott, hereby certify that J: nav,e serve.d the
orig.in·al and. two ( 2) true copies o:t; the :Eoregp;l,ng p:J..eading, by
U.s. Mail, p.ost. age· .P r.e-.J?aid.,&./J ~he Honorable Clerk of this
·.
Court, on th~s fQ_ day of
Yll }
, 1996.

Is/

t.J {jp:rvj ~

WILLIE SCOTT, PETITIONEJ~
A'DC # 70908
MAX!MOM SECURITY 'UNIT
2501 STATE FARM ROAD
TUCKER, AR., 72168-9503

Subscribed and sworn to before me on this
Aillt.'l
1996.
I

I

-

11 -

.1J2..

day of

_ AO 24Q (Rev.,6/"'6) API>lic;;ition to

Proceed ~

.-

IN THE CIRCUIT COURT OF' ?ULASKT COUNTY,, AFI\AN$i'.!)

FIRS.T DIVISION

---------~-------DISTRICT

\IJ11lie Baoi-t _ Pe-tii1oNeR
v.

OF-------------·----

APPLICATION TO PROCEED lN
FORMA PAUPE~IS, SUPPORTING
DOCUMENTATION AND ORDER

-~-.,. 1 ;" "}'" '-J.-I.j'-"e"'- -.....s~·-=e:....::o~t'-'i·__________, declare that lam the (check appropriate box)
....

1,._'11_·

IE( petitioner/plaintiff

0

0

0-------------------------<:>ther

responcient/defendant

movant (filing 28 U.S.C. 2255 motion)

I>

~

in the above-entitled proceeding; that, in support of my request to proceed without being
required to prepay fees, cost or giv~ security therefor, I state that because of my poverty, I
ani un9ble to pay the costs of said proceeding or give security therefor; thatl believe I ain
entitled to relief. The nature of my action, defense, or other proceeding or the issues I intend
to present on appeal are briefly stated as follows:

In further support of this application, I answer the following questions.

1. Are you presently employed?
Y~s 0
No IB"'
a. If the answer is "yes," state the amount of your salary or wag~s per month, and
give the name and address of your employer. (list Qc,th gross and net salary)

b. If the answer is "no," state the date of last employment and the amount of the
salary and wages per month which you receiv.ed.

2. Have you received within the past twelve months any money from any of the following sources?
·

a.

Business, profession or other form of self-employment

Nofi2(

b. Rent payments, interest or dividends?
c. Pensions, annuities or life insurance payments?
d. Gifts or inheritances?

YesO
YesO
YesO
YesO

No!B'
No.!B'
No (B".

e. Any other sol,lrces?

YesO

No

[a'

AO 240 Rewrse

Jfthe answ~r to any qf the above is "yes/' describe: each source of money and state the
amo.untre<;eived from each during the past twelve months.

.

NIA

3. Do you own any cash, or do you haw~ money in checking or savings accounts?
Yes 0
No (B'
(Include any funds in prison acco.unts.)
If .the answer is "yes," state the total value of the items owned.

NIA

4; Do you own or have any interest in any real estate, stocks; bonds, notes,
alJt()mobiles or other valuable property (exduditigordiriary household furnishings
and clothing)?
Yes 0
No
If the answer is "ye~," describe the property and' state its approximate value.

IH'

NIA
5. list the persons who are dependent up6n you for support, state your relationship to
those .persons, and indicate how much you contribute toward their support.

NONE
I declare urider penalty of perjury that the foregoing is true and correct.

Executed'on \

4-10- 9 6

..•

(Date}

Signature of Applicant

CERTIFICATE
(Prisoner Accounts Only)

I cerdfy that the applicant named herein has the sum of$ -~_,_..er-.::;;.:=::__._________
on accountto his credit atthe /Yla'tJMI.HVf 59Ccdrtv V11i
institution where he is confined. I further certify that the applicant likewise has the following securities to
his credit according to the records of said i n s t i t u t i o n : - - - - - · - - - - - - - - - - - - -

ORDER OF .COURT

The application is hereby granted. let the
applicant proceed without prepayment of
cost or fees or the necessity of giving security therefor.

The application is hereby denied

United States Judge

Date

United States Judge
or Magistrate

Da,te

EK

t4JCf
IN THE CIRCUIT COURT OF PULASKI COUNTY,

~.RKANS~S

FIRST DIVISION

PETITIONER

WILLIE SCOTT,

-vs-

CASE NO.

CR 91-1292

RESPONDEN'l'

STATE OF .ARKANSAS,

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

comes the Petitioner, Willie Sc6tt and moves this court for .
leave to proceed in this action in forma pauperis pursua.nt to 28

u.s.c.

Sec. 1915(d) without ;first being required to pre-pay fees

and costs or otherwise being required to give security therefore.
In support of this motion Petitioner has, attached his affidavit
of poverty hereto.
Respectfully submitted,

WILLIE SCOTT, PETITIONER
ADC# 70908
MAXIMUM SECURITY UNI~
2501 STATE FARM ROAD
TUCKER, AR., 72168-9503

Subscribed and sworn to before me this i.{2_ day of
I'IJ~t,'/

,

,

19 9 6.

MY C~ MISSION EXPIRES:

CE:RTIF!CATE OF SERVIC"E;

I, Wil].ie Scott, Pro-se, Petition~r. do hereby certity thQt
a copy of the above and foregoing has been mailed to the
Respondents attorney( s), by placing copy of same in <the u.s.
Mail, postage pre-paid and addressed to the Attorney General's
Office; 200 Tower Building, 323 Center Street, Littl.e Rock,
.Arkansas 72~01, on th;ls .1...L day of April, 1996. ·
Respectfully submitted,

ILLIE

SCOTT /

PETITIONEH

ADC # 70908
MAXIMUM SECURITY UNIT
2501 STATE FARM ROAD

TUCKER, ARKANSAS 72168-9503

J1_

Subscribed and sworn to befor.e me a Notary Public on this
day of April, 1996.

//-!2 -Zoos-

I-1Y COMMISSION EXPI.RES:

case 5:97-cv-00159-JWC Document 11 Filed 06/04/98 Page 1

FILED

U.S. OISTRlCT COURT
EASTERN DISTRICT ARKANSAS

JUN 0 4 1998
IN THE UNITED STATES DISTRICT COURTJAMES .Me
EASTERN DISTRICT OF ARKANSAS
By··--~~~~L\f~~
PINE BLUFF DIVISION
~
PETITIONER

SCOTT
NO. PB-C-97-159
Y NORRIS, Director,
rkansas Department of Correction

RESPONDENT

MEMORANDUM OPINION AND ORQER
The Court has received an application for writ of habeas
corpus pursuant to 28

u.s.c.

in

the

the

custody

of

§

2254 from Willie scott, an inmate

Arkansas

Department

of

Correction.

Respondent concedes that Petitioner is in his custody and has
exhausted his state remedies.
Following entry of a guilty plea in Pulaski County Circuit
Court in December 1991, Petitioner was convicted of aggravated
robbery and being a felon in possession of a firearm.

He was

sentenced as an habitual offender to sixty years' imprisonment.
(Resp't Ex. 1.) 1

By pleading guilty, Petitioner waived his right

to a direct appeal under Arkansas law.

Ark. R. App. P.-crim.

1(a) (1997) (designated at the time of Petitioner's convictions
as Ark. R. Crim. P. 36.1).
In May 1996, Petitioner filed a petition for post-conviction
relief, (Resp•t Ex. 2), which the state trial court construed as
a

petition pursuant to Ark.

untimely.

R.

Crim.

P.

37

and denied

State v. Scott, No. CR 91-1292 (Pul. Co. Cir. Ct. Dec.

18, 1996) (Resp•t Ex. 3).

Petitioner did not appeal and sought

no further post-conviction relief in state court.
1

A072A
(Rev. 8/82)

as

Respondent•s exhibits are attached to docket entry #5.

Case 5:97-cv-00159-JWC Document 11 Filed 06/04/98 Page 2 of 9

Petitioner then filed this federal habeas petition (docket
entry #2), advancing the following claims:
1.
After Petitioner pleaded guilty, the state orally
amended the information to add an habitual offender charge,
denying Petitioner fair notice;
2.
He was denied the effective assistance of counsel
because his court-appointed attorney failed to move to
withdraw the plea after the amendment and failed to advise him
of the availability of Rule 37 relief.
Respondent asserts that Petitioner's claims are procedurally
defaulted because Petitioner failed to properly present them to
the state courts.

~Coleman

y. Thompson, 501 u.s. 722 (1991).

At the direction of the Court,

Petitioner responded to this

argument (docket entry #9).
The state courts should have the first opportunity to review
constitutional

issues

correct

federal

constitutional errors made by the state's trial courts.

Engle y.

federal

and

Isaac, 456 u.s. _107, 128-29 (1982).

to

A federal habeas petitioner

is thus required to pursue all available avenues of relief in the
state courts before the federal courts will consider a claim.
u.s.c.

§

28

2254(b); Duvall y. Purkett, 15 F.3d 745, 746 (8th Cir.

1994).

He must "fairly present" the substance of his federal

claims,

including the facts and legal theory, to the highest

state court.

Krimmel y. Hopkins, 56 F.3d 873, 987

(8th cir.

1995); Bust v. Hopkins, 984 F.2d 1486, 1490 (8th Cir. 1993).

He

must present his claims to the state courts in a timely and
procedurally correct manner so that the courts will be able to
review the merits of the claims.

2

A072A
(Rev. 8/82)

Kennedy y, Delo, 959 F.2d 112,

Case 5:97-cv-00159-JWC Document 11 Filed 06/04/98 Page 3 of 9

15

(8th Cir.

Failure to do so will result

1992).

rocedural default.

in a

~

Where a procedural default has occurred, federal habeas review
is permitted only if the petitioner can demonstrate (1) cause for
he default and actual prejudice as a result of the alleged
iolation of federal law, or (2) that failure to consider the
claims will result in a fundamental miscarriage of justice, that
is,

that

a

constitutional

violation

has

resulted

the

in

conviction and continued incarceration of one who is actually
innocent.

Coleman, 501

u.s.

at 750; Murray

y,

Carrier, 477

u.s.

478, 496 (1986).
Cause requires a showing of some impediment, external to the
defense, preventing a petitioner from presenting or developing
the factual or legal basis of a claim.
89,

492.

Hurray, 477

u.s.

at 488-

Cause must be something "that cannot

fairly

be

u.s.

at 753.

A

attributed to [the petitioner]."
petitioner's pro se status,

Coleman, 501

lack of education,

below-average

intelligence, or any unfamiliarity with the intricacies of the
law

or

legal

procedure

are

not

sufficiently

constitute cause excusing a procedural default.

external

to

Sherron y.

Norris, 69 F.3d 285, 289 (8th Cir. 1995); cornrnan y. Armantrout,
959 F.2d 727, 729 (8th cir. 1992); McKinnon v. Lockhart, 921 F.2d
830, 832 n.5 (8th Cir. 1991); Smittie v. Locthart, 843 F.2d 295,
298 (8th cir. 1988).
Following entry of his guilty plea but before pronouncement of
his sentence, Petitioner could have filed a motion to withdraw
3

A072A
(Rev. 8182)

Case 5:97 -cv-00159-JWC Document 11 Filed 06/04/98 Page 4 of 9

is guilty plea pursuant to Ark. R. crim. P. 26.1.

Additionally,

e could have filed a post-conviction petition in state court,
to Ark. R. Crim. P. 37, within ninety days of entry of
is judgment of conviction, raising his claims of constitutional
iolations.

Ark. R. Crim. P. 37 .1, 37.2 (c).

Although Petitioner

filed a Rule 37 petition four and one-half years after his
conviction, it was denied as untimely.

Any petition now filed

nder either rule clearly would be untimely as well.

Failure to

seek relief under Rules 26.1 and 37 within the designated time
limits is a jurisdictional defect.

Shipman v. State, 550 S.W.2d

424, 426 (Ark. 1977) (Rule 26.1); Smithy. State, 900 S.W.2d 939,
940 (Ark. 1995) (Rule 37).
Petitioner says he tried to withdraw his guilty plea at his
sentencing hearing, but his attorney would not help him.

(See

Sent. Hrg. Tr. at 17-19 (Pet•r Ex. A-2 to docket entry #2).)
Ineffective assistance of trial counsel may constitute cause to
lift a procedural bar.

Murray,

477

u.s.

at 488.

However,

Petitioner cannot assert ineffectiveness of counsel as cause to
excuse

his

procedural

default where

he

has

never

properly

presented that ineffectiveness claim to the state courts.

Miller

y. Lock, 108 F.3d 868, 871 (8th Cir. 1997); Reese v. DelQ, 94
F.Jd 1177, 1185 (8th Cir. 1996), cert. denied, 117
(1997); Morris v. Norris, 83 F. 3d 268,
Wyldes y.
denied, 517

Hundley,

u.s.

69 F. 3d 247,

253

1172 (1996); Maynard

y.

271

s.

ct. 2421

(8th Cir.

(8th Cir.

1995),

1996);
cert.

Lockhart, 981 F.2d 981,

984 (8th Cir. 1992); Harris y. Lockhart, 948 F.2d 450, 452 (8th
4

A072A
(Rev. 8/82)

Case 5:97 -cv-00159-JWC Document 11 Filed 06/04/98 Page 5 of 9

1991); Scroggins v. Lockhart, 934 F.2d 972, 974-75 (8th cir.
991); McKinnon, 921 F.2d at 832; Smittie, 843 F.2d at 298.

This

is based on the Supreme Court's statement in Murray v.
477

u.s. at 488-89, that "the exhaustion doctrine •.•

requires that a claim of ineffective assistance be
to the state courts as an independent claim before it
ay be used to establish cause for a procedural default."

The

ighth circuit court of Appeals has applied this requirement even
in

cases where state remedies

are no

longer available

resenting the ineffective-assistance claim.

~'

for

Harris, 948

F.2d at 452; scroggins, 934 F.2d at 974-75; McKinnon, 921 F.2d at
832; Smittie, 843 F.2d at 298. 2
Petitioner had a state forum (Rule 37) for arguing that his
attorney was ineffective in connection with his guilty plea and
sentencing, and the sentencing court advised him that he could

2

In Dawan v. Lockhart, 980 F.2d 470 (8th cir. 1992), a threejudge panel of the court of Appeals stated, in a footnote and
without citing any of the Eighth Circuit cases holding otherwise,
that Murray's holding that an ineffective-assistance claim must
be presented to the state courts before being used to establish
cause was a requirement of the exhaustion doctrine and, since no
state remedies were currently available for the petitioner to
raise his ineffective assistance claims,
the exhaustion
requirement was satisfied. Id, at 475 n.6. The court of Appeals
then stated that counsel's ineffectiveness established the
requisite cause to excuse the petitioner's procedural default in
the case before it.
These statements in Dawan have not been
cited as authority in any subsequent case and, in fact, have been
expressly rejected in at least one published District court
opinion. Harris y. Norris, 864 F. Supp. 96, 98-99 (E.D. Ark.
1994) •
Similarly, this Court has determined that the cases
contrary to Dawan should control.
·
5

AO 72A

(Rev. 8182)

Case 5:97-cv-00159-JWC Document 11 Filed 06/04/98 Page 6 of 9

(Sent. Hrg. Tr. at 19.) 3

file such a petition.
imely.

He

has

not

given

the

~tate

He did not do so

courts

an

adequate

opportunity to consider whether his attorney was incompetent;
therefore, he cannot now assert ineffectiveness as cause.

~

ldes, 69 F.3d at 253.
Petitioner's untimely Rule 37 petition was not a proper
presentation of any of his federal habeas claim.

Furthermore, he

did not appeal the denial of his Rule 37 petition, creating a
second procedural obstacle.

Failure to appeal the denial of a

post-conviction petition to the highest state court constitutes
a procedural default.

Anderson y. Grease, 106 F.3d 242 (8th Cir.

1996), cert. denied, 117

s. ct.

2488 (1997); Jolly

v. Gammon,

28

F.3d 51, 53 (8th Cir. 1994).
Petitioner did not present his federal habeas claims to the
state courts in a timely and procedurally correct manner, and the
time for doing so has expired.

Therefore,

his claims are

procedurally defaulted and federal habeas review is barred unless
he can make the requisite showing of cause and prejudice, or
actual innocence.
Petitioner asserts that he was unable to file a timely postconviction petition because he did not know anything about Rule
26.1 or Rule 37 and neither his attorneys nor the state court
advised him of his right to post-conviction relief or explained
how to proceed.
3

The court incorrectly advised him that he had thirty days,
rather than ninety,
to file
"something" regarding the
effectiveness of his counsel.
6

A072A
(Rev. 8/82)

Case 5:97-cv-00159-JWC Document 11 Filed 06/04/98 Page 7 of 9

As

stated

above,

nsufficient cause.

Petitioner's

legal

inexperience

is

Furthermore, there is no state or federal

equirement that either the trial court or defense counsel inform
criminal defendant of the post-conviction remedies available to
etitioner.

~

Morris, 83 F.3d at 270 (attorney's failure to

advise criminal defendant of Rule 37 as exclusive state postconviction remedy did not excuse procedural default) ; Hill y.
II"""'"'"""'........ '

737 S.W.2d 636, 637 (Ark. 1987)

(no requirement under

state constitution or Rule 37 that trial judge inform of appeal
from unsuccessful collateral attack on judgment} •

In fact,

states are not constitutionally obligated to provide for postconviction relief at all, Pennsylyania

y.

Finley, 481

u.s.

551,

556-57 (1987), nor is there any constitutional entitlement to
counsel in state post-conviction proceedings, ColemQn, 501
at 752, 757.

u.s.

Since he had no constitutional right to post-

conviction relief or counsel in the first place, no duty was
placed upon the court or his attorney to advise him regarding
post-conviction relief.
Petitioner has failed to demonstrate cause.

Since no cause

has been shown, the prejudice element need not be addressed.
McCleskey v.

Zant,

Petitioner makes

499

u.s.

467,

502

(1991).

no attempt to fit within the

Furthermore,
"fundamental

miscarriage of justice" or "actual innocence" exception to the
cause-prejudice requirement, nor does the narrow exception appear
applicable.

~

Schlup v. Dele, 513

u.s.

298, 324-31 (1995)

(exception requires habeas petitioner to support his allegations
7

A072A
(Rev. 8182)

Case 5:97-cv-00159-JWC Document 11 Filed 06/04/98 Page 8 of 9

f constitutional error with new reliable evidence not presented
t trial, and to show, in light of the new evidence, "that it is
ore likely than not that 'no reasonable juror' would have
onvicted him"); weeks v. Bowersox, 119 F.3d 1342, 1350-51 (8th
ir. 1997), cert. denied, 118 s. ct. 887 (1998).

Petitioner

akes no assertion of innocence, nor does he present any evidence
o that effect.
Petitioner's claims are procedurally barred.
for writ of habeas corpus

is,

therefore,

This petition

dismissed

in its

entirety with prejudice.
IT IS SO ORDERED this

~

day of June, 1998.

STATES MAGISTRATE JUDGE

rHIS DOCUMENT ENTERED ON DOCKET SHEET IN
COMPLIANCE WlTti !iULE 5S AND/OR 79(a) FRCP
~N
~/s:L2lf
BY

_t\:::_,,__

8

A072A
(Rev. 8/82)

Case 5:97-cv-00159-JWC Document 11 Filed 06/04/98 Page 9 of 9
c 0 p y
F I L E
vjt
UNITED STATES DISTRICT COD~~
Eastern District of Arkansas
U.S. Post Office & Court House
600 West Capitol, Suite 402
Little Rock, Arkansas 72201-3325
June 5, 1998

* *
Re:

MAILING CERTIFICATE OF CLERK

* *

5:97-cv-00159.

True and correct copies of the attached were mailed by the clerk to the
following:
Todd Lister Newton, Esq.
Arkansas Attorney General's Office
Catlett-Prien Tower Building
323 Center Street
Suite 200
Little Rock, AR 72201-2610
Willie Scott
NCU
North Central Unit
ADC #70908
H.C. 62
Post Office Box 300
Calico Rock, AR 72519-0300
CC: Elain

James W. McCormack, Clerk
Date:

Case 5:97-cv-00159-JWC Document 12 Filed 06/04/98

-

Page1~iLED
U.S. DISTRlCT COURT
EASTERN DISTRiCT AP.KANSAS

JUN 0 4 1Y98

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

ILLIE SCOTT
NO. PB-C-97-159

RESPONDENT

LARRY NORRIS, Director,
Arkansas Department of Correction

JUDGMENT
In accordance with the Court's Order entered this date,
judgment is hereby entered dismissing this petition for writ of
habeas corpus in its entirety, with prejudice.
IT IS SO ORDERED this

l.j.h_

day of June, 1998.

ATES MAGISTRATE JUDGE

rHIS DOCUMENT ENTERED ON DOCKET SHEET IN
COMPLIAN~~JttJlULE 58. AND/OR 79(a) FRCP
ON
P4L..Z£_BY~---

A072A
(Rev. 8/82)

12

Case 5:97-cv-00159-JWC Document 12 Filed 06/04/98 Page 2 of 2
vjt
STATES DISTRICT COUR'l
Eastern District of Arkansas
U.S. Post Office & Court House
600 West Capitol, Suite 402
Little Rock, Arkansas 72201-3325
u~~ITED

June 5, 1998

* *
Re:

MAILING CERTIFICATE OF CLERK

* *

5:97-cv-00159.

True and correct copies of the attached were mailed by the clerk to the
following:
Todd Lister Newton, Esq.
Arkansas Attorney General's Office
Catlett-Prien Tower Building
323 Center Street
Suite 200
Little Rock, AR 72201-2610
Willie Scott
NCU
North Central Unit
ADC #70908
H.C. 62
Post Office Box 300
Calico Rock, AR 72519-0300
cc: Blain
James W. McCormack, Clerk

Date:

BY'~- a~