Lane v. Kelley

Filing 14

RECOMMENDED DISPOSITION recommending that 2 this § 2254 Petition for Writ of Habeas Corpus be denied, and the case be dismissed, with prejudice; and further recommending that, a Certificate of Appealability be denied. Objections due within 14 days of the entry of this Recommendation. Signed by Magistrate Judge J. Thomas Ray on 11/14/2017. (kdr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ADAM EUGENE LANE
ADC #155843
V.

PETITIONER

NO. 5:16cv00355-DPM-JTR

WENDY KELLEY, Director,
Arkansas Department of Correction

RESPONDENT

RECOMMENDED DISPOSITION
The following Recommended Disposition (“Recommendation”) has been sent
to United States District Judge D. P. Marshall Jr. You may file written objections to
all or part of this Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days of the entry of this
Recommendation. The failure to timely file objections may result in waiver of the
right to appeal questions of fact.
I. Introduction
Pending before the Court is a 28 U.S.C. § 2254 Petition for a Writ of Habeas
Corpus filed by Petitioner, Adam Eugene Lane (“Lane”), an Arkansas Department
of Correction (“ADC”) inmate. Doc. 2. Before addressing Lane’s claims, the Court
will review the procedural history of the case.

On October 2, 2013, Lane appeared in Sebastian County Circuit Court and
pleaded guilty to one count of being a felon in possession of a firearm. R. at 63-65.1
He was sentenced to six years of imprisonment, followed by four years suspended
imposition of sentence (“SIS”). R. at 73-77. He signed a document outlining the
written terms and conditions governing his behavior during the period of his SIS. R.
at 64.
On December 8, 2014, Lane was paroled and released from the ADC. R. at
127-28. In January 2015, Lane failed to report to his parole officer, was not at his
approved residence during a home visit, and was allegedly staying at a motel in Fort
Smith without having received permission from his parole officer. R. at 116-17, 12627. On January 27, 2015, Lane was located at the motel in possession of a handgun
and eight baggies containing over two grams of methamphetamine. R. at 123-24,
140-45, 154-58.
On February 3, 2015, the State filed a petition to revoke, alleging that Lane
had violated the conditions of his SIS by committing the offenses of simultaneous
possession of drugs and firearms, possession of methamphetamine with purpose to
deliver, possession of drug paraphernalia, and being a felon in possession of a
firearm. R. at 79-80. The petition further alleged that Lane had associated with a
known felon, and failed to pay restitution, fines, costs and fees. R. at 80.

1

The record of Lane’s state court proceedings was submitted as Resp’t Ex. A (Doc. 11-2).

2

On April 8, 2015, the Sebastian County Circuit Court conducted a revocation
hearing. R. at 107-63. At the end of the hearing, the Court found that Lane had
violated the conditions of his SIS by: (1) simultaneously possessing drugs and
firearms; (2) possessing methamphetamine; and (3) failing to pay his restitution,
fines, and court costs and fees. Doc. 11-3, at 41.2 The Court stated that judgment of
conviction would be entered and Lane would be sentenced to fourteen years in the
ADC. Id. On April 14, 2015, the Court entered a Sentencing Order: (1) imposing
judgment on the felon-in-possession charge; and (2) sentencing Lane to fourteen
years in the ADC. R. at 93.
Lane appealed, arguing that the trial court failed to comply with two statutory
provisions regarding SIS revocations: (1) not providing a written statement of the
evidence on which it had relied and the reasons for revoking his SIS; and (2) not
holding the revocation hearing within sixty days of his arrest. Doc. 11-3, at 45-50;
see Ark. Code Ann. § 16-93-307(b).
On November 18, 2015, the Arkansas Court of Appeals affirmed. Lane v.
State, 2015 Ark. App. 672. Lane petitioned for review in the Arkansas Supreme
Court. His petition was denied on January 28, 2016. Docs. 11-6 & 11-7. Lane did
not seek Rule 37 post-conviction relief.

2

The page of the hearing transcript containing the trial court’s ruling (page 162) is missing
from Resp’t Ex. A. Doc. 11-2 (skipping from page 161 to 163). However, the ruling, which is not
in dispute, is set forth verbatim in Lane’s Appellant Brief. Doc. 11-3, at 41.

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On November 21, 2016, Lane initiated this federal habeas action. Doc. 2. In
his Petition, he argues that he was denied the effective assistance of counsel in his
revocation proceeding because his attorney did not seek a competency evaluation.
Liberally construing Lane’s allegations, he also argues that he was denied due
process because the trial court failed to determine his competency at the revocation
hearing even though Lane “expressed discontent” and stated he was “not competent
right now, too much stuff running through my mind.” Id. at 5, 13; see R. at 108-09.
Respondent argues that all of Lane’s habeas claims are procedurally
defaulted.3 Doc. 11. Because the Court agrees, it recommends that the § 2254
Petition be denied, and that the case be dismissed, with prejudice.

II. Discussion
A habeas petitioner must “fairly present” his claims in state court before
seeking § 2254 relief in federal court. Murphy v. King, 652 F.3d 845, 858-49 (8th
Cir. 2011); 28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus …
shall not be granted unless it appears that … the applicant has exhausted the remedies
available in the courts of the State.”); Palmer v. Clarke, 408 F.3d 423, 430 (8th Cir.
2005) (a habeas petitioner has “fairly presented” a claim when he has Aproperly

3

In Lane’s Reply (Doc. 13), he argues that Respondent’s Response is “inadmissible”
because it was filed after the January 18, 2017 deadline ordered by the Court (Doc. 10). Because
the Court’s docket shows that the Response (Doc. 11) was filed on January 18, 2017, Lane’s
argument clearly is without merit.

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raised the same factual grounds and legal theories in the state courts which he is
attempting to raise in his federal habeas petition.@). By exhausting all available state
court remedies, a habeas petitioner gives the State that convicted him an
“’opportunity to pass upon and correct’ alleged violations of its prisoners’ federal
rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995).
When a petitioner fails to fully exhaust his claims in state court and time for
doing so has expired, his claims are procedurally defaulted. Coleman v. Thompson,
501 U.S. 722, 731-32 (1991). When a procedural default occurs, federal habeas
review of the claim is barred unless the prisoner can demonstrate “cause” for the
default and “actual prejudice” as a result of the alleged violation of federal law, or
demonstrate that failure to consider his claim will result in a “fundamental
miscarriage of justice.” Id. at 750.
Respondent argues that Lane’s claims are procedurally defaulted because he
never presented them to the state courts and the time for doing so has expired. The
Court agrees.
On direct appeal, Lane argued only that the trial court had violated two state
statutory provisions governing SIS revocations. He made no arguments regarding
the trial court’s failure to determine competency or the denial of due process.4

4

See Lewis v. State, 2016 Ark. App. 503, at 5-7, 505 S.W.3d 725, 729-30 (although a
defendant’s claim that he was incompetent to proceed in a revocation proceeding generally must

5

After losing his direct appeal, Lane had sixty days after the mandate issued
from the Arkansas Court of Appeals to initiate a Rule 37 post-conviction proceeding
in the state trial court. See Ark. R. Crim. P. 37.2. 5 Lane never filed a Rule 37 Petition.
Because Lane failed to present and exhaust in state court the factual and legal
basis for any of the claims for federal habeas relief that he now asserts, all of his
claims are procedurally defaulted. As “cause” to excuse his default, Lane argues
that: (1) his appellate counsel was ineffective for not asserting, on direct appeal, that
the trial court erred in failing to determine whether Lane was competent to proceed
at the revocation hearing; and (2) because he had no counsel to pursue Rule 37 postconviction relief, the Court should “apply the reasoning in Martinez” to excuse any
defaults occurring at that time. Doc. 2 at 5-6, 11, 13. See Martinez v. Ryan, 566 U.S.
1 (2012).
Lane’s contention that his direct-appeal counsel rendered ineffective
assistance in failing to raise the competency issue is insufficient to demonstrate
“cause.” Before it may be used to establish cause for a procedural default, a claim of

be raised in the trial court and on appeal, it may be raised for the time on direct appeal if it concerns
the trial court’s sua sponte duty to recognize and address the competency issue).
5

Under Arkansas law, “the proper remedy to challenge the adequacy of an attorney’s
representation is a petition for post-conviction relief under [Ark. R. Crim. P. 37].” Carrier v. State,
278 Ark. 542, 543, 647 S.W.2d 449, 450 (1983). Thus, to exhaust his ineffective assistance of trial
counsel claim, Lane was required to raise that claim in a Rule 37 petition in the trial court and then
appeal its denial of relief to the Arkansas Supreme Court. Armstrong v. Iowa, 418 F.3d 924, 92526 (8th Cir. 2005).

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ineffective assistance must first be presented to the state courts as an independent
Sixth Amendment claim. Taylor v. Bowersox, 329 F.3d 963, 971 (8th Cir. 2003)
(refusing to consider “whether [habeas petitioner’s] appellate counsel was a source
of cause to lift the procedural bar” because petitioner had never presented a claim in
state court that appellate counsel was constitutionally deficient). Lane has never
raised in state court a claim of ineffective assistance of direct-appeal counsel. See
Edwards v. Carpenter, 529 U.S. 446, 450-53 (2000) (“an ineffective-assistance-ofcounsel claim asserted as cause for the procedural default of another claim can itself
be procedurally defaulted”).
Moreover, Martinez’s narrow exception to the procedural default doctrine
does not save any of Lane’s defaulted claims. In Martinez, the Court held that
“[i]nadequate assistance of counsel [or the absence of counsel] at initial-review
collateral proceedings may establish cause for a prisoner’s procedural default of a
claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9 (emphasis added).6
However, the Martinez exception applies only to defaulted claims of ineffective
assistance of trial counsel, not to any other kind of trial error or to ineffective
assistance of direct-appeal counsel. Davila v. Davis, 137 S. Ct. 2058, 2065 (2017)
(emphasizing that Martinez “provides no support for extending its narrow exception

6

The Martinez holding was expanded by Trevino v. Thaler, 133 S. Ct. 1911 (2013), and
held applicable to certain Arkansas cases in Sasser v. Hobbs, 735 F.3d 833, 853-54 (8th Cir. 2013).

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to new categories of procedurally defaulted claims”); Dansby v. Hobbs, 766 F.3d
809, 832-34 (8th Cir. 2014). Thus, Lane cannot rely on Martinez to excuse the
default of his claim that he was denied due process based on the trial court’s failure
to determine his competency, or his claim (now asserted as cause) that his appellate
counsel was ineffective for failing to raise the competency issue on direct appeal.
Finally, while the Martinez exception is potentially applicable to Lane’s claim
of constitutionally ineffective assistance of trial counsel, in Arkansas a petitioner
must first initiate a Rule 37 proceeding. If no Rule 37 petition is filed, Martinez and
its progeny cannot be applied to save any procedurally defaulted claims. After all,
the Martinez exception is premised on “cause” consisting of “there being ‘no
counsel’ or only ‘ineffective’ counsel during the state collateral review proceeding.”
Dansby, 766 F.3d at 834. Absent a state collateral review proceeding, the “cause”
for the equitable exception ceases to exist.
Federal district courts in Arkansas have consistently held that a habeas
petitioner like Lane must, at a minimum, initiate a “state collateral review
proceeding” by filing a Rule 37 petition with the state trial court before he can rely
on Martinez to excuse his procedural default. See, e.g., Travis v. Kelley, No.
5:17CV00044-SWW-JTR, 2017 WL 4295258, at *5 (E.D. Ark. Sept. 5, 2017)
(citing cases), recommendation adopted by 2017 WL 4295197 (E.D. Ark. Sept. 27,
2017); Willis v. Kelley, No. 5:16CV05101-PKH, 2017 WL 906979, at *4 (W.D. Ark.
8

Feb. 17, 2017), recommendation adopted by 2017 WL 901899 (W.D. Ark. Mar. 7,
2017); McCullough v. Kelley, No. 5:15CV00162-JM-JTK, 2016 WL 1039521, at *2
(E.D. Ark. Feb. 25, 2016), recommendation adopted by 2016 WL 1047369 (E.D.
Ark. Mar. 15, 2016).7
Lane’s failure to file a Rule 37 Petition with the trial court bars him from
relying on the Martinez exception to excuse his now procedurally defaulted
ineffective assistance of trial counsel claims.
Accordingly, because Lane has procedurally defaulted all of his § 2254 habeas
claims, this action should be dismissed, with prejudice.

III. Conclusion
IT IS THEREFORE RECOMMENDED THAT this 28 U.S.C. § 2254 Petition
for a Writ of Habeas Corpus, Doc. 2, be DENIED, and the case be DISMISSED,
with prejudice. IT IS FURTHER RECOMMENDED THAT a Certificate of
Appealability be DENIED. See 28 U.S.C. § 2253(c)(1)-(2); Rule 11(a), Rules
Governing § 2254 Cases in United States District Courts.

7

See also Jones v. Penn. Bd. of Probation & Parole, 492 F. App’x. 242, 246-47 (3d Cir.
2012) (“[T]he Martinez analysis is inapplicable where the criminal defendant did not initiate any
state collateral review proceeding whatsoever. Were it otherwise, the Martinez rule could
potentially apply to any defendant who failed to petition for state collateral review.”) (internal
citations omitted); BRIAN R. MEANS, FEDERAL HABEAS MANUAL §§ 9B:62, 24:17 (2017). No
Court of Appeals has addressed this issue in a published opinion.

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DATED this 14th day of November, 2017.

_____________________________________
UNITED STATES MAGISTRATE JUDGE

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