Emerson v. Hobbs

Filing 47

ORDER ADOPTING 39 Report and Recommendations EXCEPT that Emerson's habeas petition challenging her 2010 conviction is dismissed with prejudice, rather than without prejudice; no certificate of appealability will be issued. Signed by Judge J. Leon Holmes on 9/18/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
TINA M. EMERSON
v.

PLAINTIFF
No. 5:13CV00136 JLH-HDY

RAY HOBBS, Director,
Arkansas Department of Correction

DEFENDANT
ORDER

Tina M. Emerson filed this habeas petition pursuant to 28 U.S.C. § 2254 on May 3, 2013. In
part, her petition challenges her 2010 conviction in Clark County, Arkansas, for failing to register as
a sex offender. As grounds for the challenge, she contends that her lawyer was ineffective. In
addition to challenging her conviction, Emerson asserts numerous claims relating to her conditions
of confinement rather than the conviction that resulted in her incarceration. United States Magistrate
Judge H. David Young has recommended that her petition be dismissed without prejudice.
As Magistrate Judge Young noted, before commencing this action, Emerson filed a habeas
petition in the United States District Court for the Western District of Arkansas, Emerson v. Hobbs,
Case No. 6:12cv06116, challenging the same conviction and also asserting that her lawyer was
ineffective. At the time Judge Young issued his recommended disposition, that case was still pending.
On September 13, 2013, the Western District entered judgment against Emerson and dismissed her
petition with prejudice. Because Emerson’s claims were presented in the Western District of
Arkansas and were adjudicated, her present challenge to her conviction must be dismissed. 28 U.S.C.
§ 2244(b)(1). Magistrate Judge Young recommended that Emerson’s petition be dismissed without
prejudice to allow her to pursue the claim in the Western District. Now, however, a final judgment
has been entered dismissing that claim, so her present petition must be dismissed with prejudice.

As to Emerson’s claims that challenge her conditions of confinement, Magistrate Judge
Young recommended that those claims be dismissed without prejudice because they are properly
brought in a civil rights action under 42 U.S.C. § 1983, not in a habeas petition under 28 U.S.C.
§ 2254.
For the reasons stated, upon de novo review, the Court adopts the recommendation of
Magistrate Judge Young, except that Emerson’s habeas petition challenging her 2010 conviction is
dismissed with prejudice, rather than without prejudice.
Pursuant to 28 U.S.C. § 2253 and Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Court, the Court must determine whether to issue a certificate of appealability
in the final order. A certificate of appealability will be issued only if the applicant has made a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(1)-(2). Emerson has
not made a substantial showing of a constitutional right. Therefore, no certificate of appealability will
be issued.
IT IS SO ORDERED this 18th day of September, 2013.

_________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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