Myers v. Payne

1

MARLON T. MYERS PETITIONER v. DEXTER PAYNE RESPONDENT

No. 4:22-cv-00865-KGB-PSH

United States District Court, E.D. Arkansas, Central Division

July 21, 2023

RECOMMENDATION

INSTRUCTIONS

The following Recommendation has been sent to United States District Judge Kristine G. Baker. 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 this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

DISPOSITION

In this case, petitioner Marlon T. Myers (“Myers”) challenges the 2019 revocation of his probation and does so by means of a petition pursuant to 28 U.S.C 2254.^[1] It is recommended that this case be dismissed. The two claims raised in his petition involve the alleged violation of state law and are therefore not cognizable in this case. To the extent the claims involve the alleged violation of his federal constitutional right to due process, they warrant no relief.

The events giving rise to the revocation of Myers' probation were summarized by the Arkansas Court of Appeals. The summary is, in part, as follows:

On March 11, 2018, Myers was charged with failure to appear to which he pleaded guilty, and he entered a plea of no contest to the new charge of aggravated assault on a family member. Myers was sentenced to two years' imprisonment in the ADC with an additional four years' suspended imposition of sentence to run concurrently with his existing sentences, and he was ordered to have no contact with Shameer Flanigan. Myers was ordered to pay court costs. In July 2018 Myers was released from the ADC.

In April 2019, the State filed a petition to revoke Myers's probation alleging that Myers had violated the no-contact order and failed to pay fines. On August 15, Myers filed a motion to dismiss the petition to revoke arguing that the required hearing within sixty days of filing the petition had not occurred, and he should be released. The circuit court held a hearing on the matter the next day. Myers testified that he had been arrested on May 25, 2019, on the petition to revoke warrant and other misdemeanor charges, and his attorney advised him to refuse the State's offer regarding the misdemeanor charges until he went to trial on the petition to revoke. Myers explained that he had been incarcerated for over sixty days without a hearing on the petition to revoke; thus, the petition should be dismissed. The circuit court denied the motion, finding that Myers was in jail for the district court charges as well as the petition to revoke; therefore, the sixty-day period did not begin until he was no longer being held on the district court charges.

Immediately after the hearing on the motion to dismiss, the circuit court addressed the petition to revoke. The State entered a payment ledger into evidence showing that Myers was $815 in arrears on fines, fees, and costs. The only witness Officer Michael Coder of the Fort Smith Police Department, testified that in January, he was dispatched to investigate a possible stabbing. When Coder arrived at the scene, he found Myers receiving medical attention for neck and back wounds, and Myers stated that Shameer Flanigan had stabbed him.

The circuit court revoked Myers's probation, finding that the State had proved he violated the terms of his suspended sentence to pay fines, fees, and costs as ordered and to have no contact with Shameer Flanigan. Myers was sentenced to ten years' imprisonment in the ADC followed by an additional four years' suspended imposition of sentence....

See Myers v. State, 2021 Ark.App. 449, 2021 WL 5349923, 1-2 (2021).

Myers appealed the revocation of his probation. The state Court of Appeals found no reversible error and affirmed the revocation of his probation. See Myers v. State, 2020 Ark.App. 460, 608 S.W.3d 635 (2020).

Myers thereafter filed a petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37, a petition in which he challenged the legal representation afforded him in the probation revocation proceeding. The state Court of Appeals summarized the petition, and the state trial court's treatment of the petition, as follows:

On December 8, 2020, Myers filed a Rule 37 petition claiming ineffective assistance of counsel. See Ark. R. Crim. P. 37.1. Myers's petition focused on the motion to dismiss the revocation petition that his attorney filed at his insistence and was denied by the circuit court. Myers contended that the district court attorney representing him on the new criminal charges advised him to refuse the State's plea offer on the pending charges stemming from his May 2019 arrest because his acceptance could be used against him at the hearing on the petition to revoke. Myers asserted that counsel told him that “they have sixty days from the date of arrest to have a petition to revoke hearing by law,” and he should accept the plea after that. Myers's hearing on the new charges was set for August 14, and his revocation hearing was scheduled for August 15. On July 22, Myers sent counsel representing him on the petition to revoke, Nancy Pryor, a letter requesting that she file a motion to dismiss. Myers explained that pursuant to Ark. Code Ann. 5-4-310(b), the court was required to hold a hearing on the petition to revoke within sixty days and that the hearing was set after the sixty-day deadline (which was July 24). On August 12, counsel responded by email, explaining that [t]he misdemeanor charges in city court that you have, including the criminal mischief charge, are NOT part of the PTR and are not alleged as violations in the PTR. Matt Davis is your attorney in that case, and you will need to discuss that case directly with him. No sentence that you might receive Aug. 14 will satisfy your PTR sentence, and neither will you be found innocent of those charges.

Pryor explained that the State had offered him four years' incarceration in the ADC and that his exposure if he let the circuit court sentence him was up to eighteen years. Myers asserted that he instructed Pryor to file a motion to dismiss the revocation proceedings despite her explanation that the sixty days would not begin to run until after the charges had been adjudicated. Pryor filed the motion as requested on August 14, and the circuit court denied it. Myers contended that Pryor mishandled the motion to dismiss and this caused him to suffer prejudice; namely, that the circuit court revoked his probation, and the sentence handed down after the motion to dismiss was erroneously denied was unconstitutional.

The circuit court denied his petition, finding that Pryor was not ineffective for filing the motion to dismiss that Myers insisted she file and that was meritless. In the order, the court reasoned that Myers had “multiple misdemeanor charges out of district court that had not been disposed of during the filing of the petition to revoke.” The court found that Pryor had correctly advised Myers that the sixty days would not begin to run until the district court charges had been resolved. The day after the misdemeanor charges were adjudicated in district court, the circuit court addressed the petition to revoke, well within the sixty-day time limit, which did not begin to run until the district court charges were resolved....

See Myers v. State, 2021 5349923, 2.^[2] The state Court of Appeals affirmed the denial of Myers' Rule 37 petition, finding that he failed to show counsel provided ineffective representation.

Myers then began this case by filing the petition at bar. In the petition, he advanced two claims built upon the following assertion: the hearing on the petition to revoke his probation violated Ark. Code Ann. 16-93-307(b) as the hearing was not held within a reasonable period of time not to exceed sixty days after his arrest. Myers first alleged that his incarceration is illegal because the hearing occurred eighty-two days after his arrest. Second, he alleged that the state trial court lacked jurisdiction, again because the hearing occurred eighty-two days after his arrest.

Respondent Dexter Payne (“Payne”) filed a response to the petition. In the response, Payne maintained that the petition should be dismissed because Myers' claims involve the alleged violation of Ark. Code Ann. 16-93-307(b) and are not therefore cognizable in this case. Payne additionally maintained that the claims are procedurally barred from federal court review and, alternatively, warrant no relief.

Myers filed a reply in which he maintained that the...