Stewart v. Kelley

Filing 40

ORDER adopting as modified 33 the Recommendation; denying Stewart's petition for a writ of habeas corpus and dismissing it with prejudice; granting Stewart a certificate of appealability on one issue: did trial counsel's defective performance about parole eligibility prejudice Stewart; and relieving Blake Byrd as Stewart's counsel with thanks. Signed by Judge D. P. Marshall Jr. on 2/10/2017. (kdr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
BILLY WAYNE STEWART, SR.
ADC #104406

v.

PETITIONER

No. 5:15-cv-158-DPM

WENDY KELLEY, Director,
Arkansas Department of Correction

RESPONDENT

ORDER
1. Stewart was forty-seven years old when he was convicted of rape.

The facts left no doubt on guilt. Stewart's victim had the mind of a six-yearold. She gave birth to his child. Stewart's only defense was consent.
The only substantial issue raised on habeas is ineffective assistance of
trial counsel at the sentencing phase. Everyone involved - defense counset
the prosecutor, and the trial court- handled the sentencing as if Stewart
would be eligible for parole after serving seventy percent of his sentence. The
State argued for life imprisonment, but fell back to explaining the seventy
percent result if a term of years was imposed. NQ 16-1at518, 525. Stewart's
lawyer sought some period less than life and also discussed parole eligibility.
NQ 16-1at523-24. The trial court gave an agreed instruction that echoed the
error, saying Stewart would be parole eligible. NQ 16-1at515.

He's not. Some years before, Stewart had been convicted of first degree
battery under Arkansas Code Annotated § 5-13-201. This violent felony
eliminated his parole eligibility.

ARK.

CODE

ANN. § 16-93-609.

This

conviction, along with six others, came into evidence during the sentencing
phase of Stewart's rape trial. The jury rejected the prosecutor's argument for
a life sentence and settled on seventy years. Under the court's mistaken
instruction and counsel's mistaken arguments, that sentence meant parole
eligibility when Stewart is ninety-six. The truth is, he'll never be eligible.
2. The State's procedural bar argument fails. Stewart tried to raise this
issue in his state post-conviction proceeding. He was prose at that point. The
trial court rejected his argument out of hand. NQ 16-2 at 88, 232, 258-59. In
any event, Martinez v. Ryan, 566 U.S. 1, 13-15 (2012), and Trevino v. Thaler, 133
S. Ct. 1911, 1921 (2013), open the merits in these circumstances on a
substantial claim like Stewart's.
3. Trial counsel's work was constitutionally defective. Arkansas's
parole eligibility statutes are clear and settled law. ARK. CODE ANN.§§ 16-93609(b)(2) & 5-4-501(d)(2)(A)(vi). The material fact-the prior battery first
conviction-was obvious and in the case. That Stewart's lawyer was joined

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in the error by the prosecutor and the trial court doesn't change the
conclusion. The Sixth Amendment puts the duty of reasonable competence
on defense counsel. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). We
all make mistakes all the time, of course. But some mistakes by trial counsel
have constitutional consequences.
4. The deep issue is prejudice. It's close. The State makes a strong
argument that the jury's sentence, though clouded by legal error, was actually
and effectively a life sentence. Few of us will reach ninety-six. So we should
tolerate the error, the State continues, because it didn't make any real
difference. Stewart counters-through appointed counsel, whose work the
Court appreciates - that he's carried his burden and shown enough to get a
new sentencing trial.
Strickland, as everyone recognizes, provides the governing law. Stewart

"must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence
in the outcome." 466 U.S. at 694.

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As the State hammers home, the Supreme Court rejected a possible-effect
standard as too loose. "It is not enough for [Stewart] to show that the errors
had some conceivable effect on the outcome of the proceeding. Virtually
every act or omission of counsel would meet that test[.]" 466 U.S. at 693. That
standard would pay insufficient respect to the need for finality, as well as
insufficient attention to lawyers' human imperfections.
But the Court likewise rejected the outcome-determinative rule that some
Courts of Appeal had adopted. "[Stewart] need not show that counsel's
deficient conduct more likely than not altered the outcome of the case."
466 U.S. at 693. Though it has many strengths, that stricter standard would
give insufficient weight to one of the chief guarantors of the fair
administration of justice: constitutionally effective work by counsel. "The
result of a proceeding can be rendered umeliable, and hence the proceeding
itself unfair, even if the errors of counsel cannot be shown by a preponderance
of the evidence to have determined the outcome." 466 U.S. at 694. Thus the
middle way charted by the Court: a reasonable probability- a probability
sufficient to undermine confidence - that, but for counsel's errors, Stewart's
sentence would have been different.

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Stewart hasn't carried his burden. The jury heard the troubling facts of
this case: Stewart was a family friend. He knew his victim functioned on a
first-grade or second-grade level.

Nonetheless, when her parents took

Stewart in, he had sex with their daughter; and she spent the next eight
months unaware that she was carrying Stewart's child. After hearing these
facts, the jury gave Stewart a sentence it believed would keep him in prison
until he's ninety-six.
If the jury had heard a correct parole-eligibility instruction, it's possible

they would have given Stewart a shorter sentence. But in light of the bad
facts, Stewart's age, and the lengthy sentence imposed, it's just that- a
possibility. The system malfunctioned in his case, but not to a degree that
undermines confidence in the result. This is a close case; but Stewart hasn't
quite cleared the prejudice bar.
5. Recommendation, NQ 33, adopted as modified. Stewart's petition for
a writ of habeas corpus is denied and will be dismissed with prejudice. The
Court grants Stewart a certificate of appealability on one issue: did trial
counsel's defective performance about parole eligibility prejudice Stewart.

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28 U.S.C. § 2253(c). The Court relieves Blake Byrd as Stewart's counsel with
thanks.
So Ordered.

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