Whitney v. Kelley

JAMES E. WHITNEY PETITIONER v. WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

Civil No. 5:19-cv-05054

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION

June 12, 2020

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Before the Court is the pro se Amended Motion under 28 U.S.C. § 2254 to Vacate, Set Aside, or Correct Sentence (ECF No. 6) filed by Petitioner James E. Whitney ("Whitney"). Arkansas Department of Correction Director Wendy Kelley ("Respondent") filed a Response (ECF No. 14). Whitney filed a Reply (ECF No. 18) and a Supplement (ECF No. 19).¹ The matter is before the undersigned for issuance of this report and recommendation.

I. BACKGROUND

On May 12, 2016, after a two-day jury trial in the Circuit Court of Washington County, Whitney was found guilty of eighteen (18) counts of possession of child pornography. (ECF No. 16-2 at 111-122, 124-128, 130). He was acquitted on two other counts. Id. at 123 & 129. The sentencing verdict of the jury was a term of imprisonment of 30 years on each count and a fine of $10,000 on each count. Id. at 131-150. The jury recommended that the terms of imprisonment run consecutively. Id. at 151. The following day, the Washington County Circuit Court entereda Judgment and Commitment Order sentencing Whitney to 30 years on each of the eighteen counts, with the terms to run consecutively, as well as a fine of $10,000 on each count. Id. at 153-164.

Whitney filed a direct appeal to the Arkansas Court of Appeals raising two issues: One, the sufficiency of the evidence regarding his possession of the computers at issue and regarding the age of the females depicted in the pornographic images; and Two, whether the Court erred in admitting into evidence transcripts of conversations in a Yahoo chat room. Whitney v. State, 520 S.W. 3d 326 (Ark. App. 2017). The Arkansas Court of Appeals affirmed the conviction. Id. On June 21, 2017, Whitney's pro se petition for rehearing was denied and the mandate entered. Whitney v. State, Ark. Ct. App., CR-16-964.

On May 24, 2017, Whitney filed in the Washington County Circuit Court a pro se petition for post-conviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. (ECF No. 15-2 at 18-26). Whitney argued that his sentence was imposed in violation of the Constitution and laws of the United States or the State of Arkansas. Id. at 18. Whitney asserted various ineffective assistance of counsel claims. Id. at 20-23. He also asserted the following claims: an illegal search; errors in the chain of custody of evidence; the misquoted and/or false statements used to suggest probable cause existed; the admission of the graphic pornographic images; and various other errors of the trial court. Id. at 23-24. On May 30, 2017, the Washington County Circuit Court dismissed the petition on the grounds that it failed to contain a verified affidavit as required by Rule 37.1(c). (ECF No. 14-4 at 3). Alternatively, the court ruled on the merits of the petition, finding that it consisted of conclusory statements without factual substantiation and failed to demonstrate either deficient performance or prejudice as required to establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).Id.

On appeal, the Arkansas Supreme Court first noted that the Rule 37.1 petition was filed before the mandate was issued on Whitney's direct appeal. Whitney v. State, CR-17-919 (Ark. Feb. 15, 2018)(ECF No. 14-4 at 1).² It held that the trial court lacked authority to rule on the petition until the mandate had been issued. Id. at 3. Moreover, without the verified affidavit, the court noted that "neither the trial court nor this court has authority to reach the merits of the Rule 37.1 petition." Id. It concluded Whitney could not succeed on appeal. Id. at 4. It treated the petition as a motion for rule on clerk and dismissed it. Id.

On January 12, 2017, Whitney filed a motion to proceed in forma pauperis ("IFP") on a habeas corpus petition in the Circuit Court of Lincoln County. Whitney v. Kelley, 40CV-17-60-5; (ECF No. 14-5 at 1). As summarized by the Lincoln County Circuit Court, Whitney raised the following grounds for relief: he was innocent; he is a sovereign and not subject to man's laws; prosecutorial misconduct; judicial misconduct; trial court errors; he was serving a defacto life sentence which was cruel and unusual punishment; and his attorney was ineffective. Id. On April 9, 2018, the Circuit Court granted Whitney IFP status. (ECF No. 14-5 at 1). On December 20, 2018, the Arkansas Supreme Court remanded the case for a supplemental order on the IFP petition that contained adequate findings of fact and complied with Rule 72 of the Arkansas Rules of Civil Procedure. Whitney v. Kelley, 562 S.W. 3d 208 (Ark. 2018). Upon remand, on January 15, 2019, the Circuit Court of Lincoln County held that while Whitney was indigent, he failed to allege facts indicating he had a colorable cause of action, as none of his claims were cognizable inhabeas. (ECF No. 14-5 at 1-2). The IFP motion was denied and Whitney was instructed that he had to pay the filing fee and associated costs to commence his case. Id. at 2.

Whitney filed an appeal from the denial of IFP status. Whitney v. Kelley, CV-18-384. However, he sought leave to file a brief not in conformance with the rules of the Arkansas Supreme Court. Id. He was not granted leave to do so. Id. On February 6, 2020, the appeal was dismissed based on his failure to file his brief. Id. The merits of the habeas petition were not addressed. Id.

On June 16, 2017, Whitney filed a writ of error coram nobis³ with the Circuit Court of Washington County. (ECF No. 14-6 at 1). The circuit court ruled that because Whitney had appealed his conviction, the court had "no jurisdiction to hear" the petition. Id. Whitney appealed the denial to the Arkansas Supreme Court. Whitney v. State, 2018 Ark 138 (Ark. 2018)(not in S.W.3d). The Supreme Court held that "[t]he trial court cannot entertain a petition for writ of coram nobis after a judgment has been affirmed on appeal unless this court grants permission." (ECF No. 14-7 at 1). The Court noted that when Whitney filed his petition, he had "not sought, much less obtained, this court's permission to reinvest jurisdiction in the trial court to file a petition for writ of error coram nobis or any other similar relief." Id. at 2. The decision of the circuit court was affirmed on April 26, 2018. Id. at 1. Whitney's petition for rehearing was denied on June 7, 2018. Id.

On February 8, 2018, Whitney filed a petition to correct an illegal sentence in the Circuit Court of Washington County. (ECF No. 14-8 at 1-38). On February 12, 2018, the courtdismissed the petition "for failure to state facts upon which relief can be granted and for want of jurisdiction." (ECF No. 14-9). On February 20, 2020, Whitney's appeal of this order was dismissed based on Whitney's failure to follow the appellate briefing schedule. Whitney v. State, Ark. Sup. Ct. CR-18-418.

Whitney filed this federal § 2254 habeas corpus petition on March 21, 2019. Respondent concedes Whitney is in custody pursuit to the child pornography convictions. Respondent also concedes that Whitney has no unexhausted, non-futile state remedies available to him.

II. DISCUSSION

A. Grounds Asserted

As grounds for relief, Whitney alleges the following:

Ground One: Actual Innocence;

Ground Two: The Trial Court lacked subject matter jurisdiction as the statute of limitations had expired before the filing of the charges;

Ground Three: The Trial Court lacked in rem and in personam jurisdiction;

Ground Four: The consent given by his now ex-wife to search the computers was illegal;

Ground Five: There were breaks in the chain of custody for the computers as well as improper procedures;

Ground Six: Exculpatory evidence was withheld by the prosecutor and investigating detective;

Ground Seven: The source of the evidence used at trial was suspect;

Ground Eight: The Trial Court published visual evidence to maliciously interfere with the cross-examination of Detective Schrock;

Ground Nine: The Trial Court erroneously admitted into evidence the Yahoo chats that constituted "privileged papers;"Ground Ten: The Trial Court erred in denying the motion for directed verdict in part based on the illegal submission of the Yahoo chats;

Ground Eleven: The Trial Court had no jurisdiction to impose sanctions on more than one count of conviction as the counts were duplicative;

Ground Twelve: The sentence imposed was a clear deviation from the statute, Ark. Code Ann. § 5-27-602;

Ground Thirteen: The Trial Court departed from the criminal information when it allowed the prosecutor to use prior misdemeanor convictions to increase the penalties by using the habitual offender enhancement;

Ground Fourteen: Ineffective assistance of counsel in not providing Whitney assistance to navigate the trial in his best interests and not allowing him to be actively involved in the preparation or presentation of the case;

Ground Fifteen: The jury pool was not an accurate reflection of the Washington County population;

Ground Sixteen: The layout of the courtroom was prejudicial to the defense—defense table sits along the periphery of the jury box;

Ground Seventeen: The sentence imposed was not an equitable sentence and amounts to more than life without the possibility of parole;

Ground Eighteen: The Trial Court erred in revoking Whitney's pre-trial bond without a hearing or an opportunity to oppose the Respondent's motion;

Ground Nineteen: The Trial Judge made improper comments, facial gestures, or "indications" about Whitney not testifying.

(ECF No. 6).

Respondent argues: (1) Whitney's § 2254 petition is time-barred; (2) grounds 1-9 and 11-13 do not assert cognizable claims; and (3) alternatively, that each of the grounds 1-9 and 11-19, are procedurally defaulted, with the sole exception being ground ten.

B. Timeliness—One-Year Limitation...