Newman v. Norris, CORR AR

Filing 101

ORDER denying 100 Motion for Reconsideration. Signed by Honorable Robert T. Dawson on March 16, 2009. (lw)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION RICKEY DALE NEWMAN v. CASE NO. 05-2107 RESPONDENT PETITIONER

LARRY NORRIS, Director, Arkansas Department of Correction ORDER

Currently before the Court is Petitioner's Motion to Reconsider Order Staying Proceedings Pending Exhaustion of State Remedies. (Doc. 100.) Respondent has not filed a response in opposition to

Petitioner's motion. Petitioner contends that Respondent conceded that Petitioner's claims are fully exhausted and that the requirement for exhaustion is waived. (Doc. 100, p. 2.) In its Response to Petitioner's Petition,

Respondent stated "Respondent further admits that petitioner has exhausted his available, non-futile state remedies." 7-8.) (Doc. 20, pp.

Petitioner contends that any future attempts to seek remedies

in state court will be fruitless. (Doc. 100, p. 3.) Petitioner cites to Dickens v. Armontrout, 944 F.2d 461, 462 (8th Cir. 1991), for the proposition that "[W]here a state enters such a waiver, reversible error for a federal court to decline to accept it." 100, p. 3.) In Dickens, the Eighth Circuit Court of Appeals held that where a petitioner fails to file for post conviction relief under the state's statute and the state has waived its exhaustion defense, "the it is

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district

court

should

have

accepted

the

state's

waiver

of

its

exhaustion defense."

944 F.2d at 462-63, citing Hampton v. Miller, In Hampton, the Court clarified that

927 F.2d 429 (8th Cir. 1991).

the district court should have accepted the state's waiver of its exhaustion defense "because state courts had `refused to decide the question of the availability of [post conviction relief] [in similar cases]...this is not an issue of such exceptional importance to the State that a federal court should reject the State's clear waiver of the exhaustion requirement." Id. at 462, citing Hampton v. Miller,

927 F.2d 429, 431 (8th Cir. 1991) (second alteration appears in original) (additional citation omitted) . In the present case, we ordered the proceedings to be stayed pending exhaustion in State court. Petitioner is correct that he

failed to file for post conviction relief in State court, and the State waived the exhaustion requirement. If those were the only

considerations, Petitioner would be correct that this would be a situation where we could look to the State's past refusals to make available post conviction relief in similar cases and accept

Respondent's waiver of the exhaustion requirement.

However, this is

a situation, where the "evidence" of incompetency prior to and during the State trial was not discovered until after the federal habeas petition was filed. Neither the Petitioner nor the State had

knowledge that the State's psychologist failed to correctly administer and grade Petitioner's mental examinations. It was on the basis of

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this newly discovered evidence, to which the State has not expressly waived the exhaustion requirement, that we ordered the present stay. As such, we can only conclude the State did not expressly waive the exhaustion requirement of the newly discovered evidence, as the State had no opportunity to review this evidence. Alternatively, if it is determined that express waiver exists for the entire petition, to include the newly discovered evidence, we find that this particular issue is one of exceptional importance. nature of comity necessarily implies a power of waiver, "The since

exhaustion `is designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings' and `is intended to give the State the opportunity for initial review.'" Hampton v. Miller, 927 F.2d 429, 431 (8th Cir. The State should evidence,

1991) (emphasis in original) (citations omitted). have the opportunity to review the newly

discovered

especially

as it relates to the claim that Petitioner was not We find that the State has not had the

competent to stand trial.

opportunity to initially review Petitioner's claims in light of the newly discovered evidence regarding his competency prior to and during the trial. Furthermore, in respect to the present issue of alleged

incompetence and evidence not discovered until more recently, it cannot be said that "this is not an issue of such exceptional importance to the State that a federal court should reject the State's clear waiver of the exhaustion requirement"; in fact, the opposite is

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true. See Dickens, 944 F.2d at 462. Therefore, we reject the State's express waiver of the exhaustion requirement. Upon due consideration, the motion (Doc. 100) is hereby DENIED. IT IS SO ORDERED THIS 16th day of March 2009.

/S/ Robert T. Dawson Robert T. Dawson United States District Judge

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