Hoes v. Gwin

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

DEVONTA MONTELL HOES PETITIONER

V. Civil No. 2:24-cv-02106-TLB-MEF

OFFICER MATTHEW GWIN RESPONDENT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Before the Court is a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a

Person in State Custody. (ECF No. 1). The Respondent has not been directed to file a response

and none is necessary. The matter is ready for Report and Recommendation.

I. BACKGROUND

Petitioner, Devonta Montell Hoes (“Hoes”), filed his pro se Petition on August 14, 2024.

(ECF No. 1). The Petition concerns his state criminal case, State of Arkansas v. Devonta Montell

Hoes, Case No. 66FCR-24-134.1 State court records show that Hoes was initially charged on

February 5, 2024, with Trafficking in Fentanyl, Delivery of Fentanyl, Simultaneous Possession of

Drugs and Firearms, and Tampering with Physical Evidence. On June 5, 2024, Hoes appeared

with his court-appointed public defender for a change of plea hearing. The State of Arkansas

announced its decision to nolle pros the Trafficking in Fentanyl charge, and Hoes entered a

negotiated plea of guilty to the other three charges. Hoes was sentenced to the Arkansas Division

of Correction for 336 months (28 years), plus 144 months (12 years) suspended imposition of

sentence, on the Delivery of Fentanyl and Simultaneous Possession of Drugs and Firearms charges,

1 Hoes states that he was sentenced on June 5, 2024, to 28 years imprisonment, plus an additional

12 years suspended imposition of sentence. (ECF No. 1, p. 1). Information regarding the

Petitioner’s state court case was located on caseinfo.arcourts.gov.

and he was sentenced to 72 months (6 years) on the Tampering with Physical Evidence charge,

with all sentences to run concurrently with each other. The Sentencing Order was entered on June

11, 2024. No appeal was taken. (ECF No. 1, p. 2). No post-conviction proceeding pursuant to

Ark. R. Crim P. 37.1 was filed (Id., p. 3), and the time to do so under Ark. R. Crim. P. 37.2(c)(i)

(90 days) has now passed.

In his § 2254 Petition now before the Court, Hoes claims that the initial stop “was a fishing

expedition which made my arrest unlawful,” that the Prosecuting Attorney violated the Brady rule

by failing to provide Hoes with all the evidence to be used against him, and that his counsel was

ineffective because she never counseled him but “ass[isted] the prosecutor threatening and

coercing me and bring me under duress.” (ECF No. 1, pp. 5-9). For relief, Hoes wants “total

exoneration from all charges and [$]500,000.” (Id., p. 15).

Because Hoes did not name his current custodian as the Respondent, see Rules Governing

§ 2254 Cases, Rule 2(a), the Court entered an Order on September 13, 2024, directing Hoes to file

an Amended Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 on or before October 14,

2024. Instead of doing so, Hoes filed a pleading entitled “Entry of Default” on September 25,

2024. (ECF No. 5). Noting that Petitions for habeas corpus relief under 28 U.S.C. § 2254 are

subject to preliminary review by the Court, and if a petition is not dismissed, the judge must order

the respondent to file an answer, motion, or other response within a fixed time, and that no response

had yet been ordered, Hoes’s motion for default judgment was denied by Order entered on

September 26, 2024. (ECF No. 6).

Four days later, Hoes filed a Motion for Summary Judgment.2 On October 7, 2024, Hoes

filed a notice (ECF No. 8) advising that he had not received the Court’s previous Order directing

him to file an Amended Petition, so a copy of the Court’s earlier Order (ECF No. 4) and a blank

standard form Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (AO 241) were mailed

to him at the Sebastian County Detention Center, and he was given until November 12, 2024, to

file his Amended Petition. (ECF No. 9). Hoes has not filed an Amended Petition Under 28 U.S.C.

§ 2254 as ordered by the Court.

II. DISCUSSION

A. Failure to Comply with a Court Order

Due to a deficiency in his § 2254 Petition, namely, failing to name his current custodian as

the respondent, Hoes was given an opportunity to correct the deficiency by filing an Amended

Petition. An Order entered on September 13, 2024, directed him to file an Amended Petition no

later than October 14, 2024, naming as the respondent his current custodian. (ECF No. 4). Prior

to the expiration of that deadline, Hoes submitted a notice (ECF No. 8) advising the Court that he

had not received a copy of the Court’s Order directing him to file an Amended Petition. Hoes

stated, “I would like a blank writ of habeas corpus so I can amend it and I would like to know what

deficiency was found on my writ of habeas corpus so I can fix it.” Id. The Court then directed the

Clerk to send Hoes a copy of the Court’s Order (ECF No. 4) and a blank petition for writ of habeas

corpus under 28 U.S.C. § 2254, and the deadline for submission of the Amended Petition was

2 The Motion for Summary Judgment listed both of his pending case numbers, including 2:24-cv-

02096, which is his case brought under 42 U.S.C. § 1983, and the instant habeas corpus case

brought under 28 U.S.C. § 2254. The Motion for Summary Judgment in this habeas case was

denied by Order entered on October 11, 2024. (ECF No. 10).

extended to November 12, 2024. (ECF No. 9). Hoes has not filed an Amended Petition and the

deadline to do so has passed.

Although pro se pleadings are to be construed liberally, a pro se litigant is not excused

from complying with substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.

1984). Local Rule 5.5(c)(2) states in pertinent part:

It is the duty of any party not represented by counsel to promptly notify the

Clerk and the other parties to the proceedings of any change in his or her

address, to monitor the progress of the case, and to prosecute or defend the

action diligently . . .. If any communication from the Court to a pro se plaintiff

is not responded to within thirty (30) days, the case may be dismissed without

prejudice. Any party proceeding pro se shall be expected to be familiar with

and follow the Federal Rules of Civil Procedure.

Additionally, the Federal Rules of Civil Procedure specifically contemplate dismissal of a

case on the grounds that the plaintiff failed to prosecute or failed to comply with orders of the

court. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (stating the

district court possesses the power to dismiss sua sponte under Rule 41(b)). Pursuant to Rule 41(b),

a district court has the power to dismiss an action based on “the plaintiff's failure to comply with

any court order.” Brown v. Frey, 806 F.2d 801, 803–04 (8th Cir. 1986) (emphasis added).

To date, Hoes has failed to file an Amended Petition as ordered by the Court. Therefore,

pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), his pending § 2254

Petition is subject to dismissal.

Hoes’ pending § 2254 Motion is also subject to summary dismissal for other reasons, as

will be discussed below.

B. Effect of Hoes’ Guilty Pleas

The state court record makes clear that Hoes entered negotiated pleas of guilty to the

offenses which he now challenges. It is well established that a defendant who enters a guilty plea

waives all non-jurisdictional defenses. Tollett v. Henderson, 411 U.S. 258, 266 (1973) (guilty

pleas in the Brady3 trilogy were found to foreclose direct inquiry into the merits of claimed

antecedent constitutional violations); Smith v. United States, 876 F.2d 655, 657 (8th Cir. 1989)

(“In pleading guilty, a defendant waives all challenges to the prosecution except those related to

jurisdiction,” including claims regarding search and seizure), cert. denied, 493 U.S. 869 (1989).

Thus, under the Tollett line of cases, a defendant who voluntarily and intelligently enters a plea of

guilty is precluded from later obtaining collateral review of antecedent non-jurisdictional defects.

When a guilty plea is entered, the focus of a subsequent collateral attack must remain

limited to the nature of counsel’s advice and the voluntariness of the guilty plea. Bass v. United

States, 739 F.2d 405, 406 (8th Cir. 1984) (citing Tollett, 411 U.S. at 266). As the Court in Tollett

observed:

“. . . a guilty plea represents a break in the chain of events which has

preceded it in the criminal process. When a criminal defendant has

solemnly admitted in open court that he is in fact guilty of the

offense with which he is charged, he may not thereafter raise

independent claims relating to the deprivation of constitutional

rights that occurred prior to the entry of the guilty plea. He may

only attack the voluntary and intelligent character of the guilty plea

by showing that the advice he received from counsel was not within

the standards set forth in McMann4.

A guilty plea, voluntarily and intelligently entered, may not be

vacated because the defendant was not advised of every conceivable

constitutional plea in abatement he might have to the charge . . . And

just as it is not sufficient for the criminal defendant seeking to set

aside such a plea to show that his counsel in retrospect may not have

correctly appraised the constitutional significance of certain

historical facts, (internal citation omitted) it is likewise not sufficient

that he show that if counsel had pursued a certain factual inquiry

3 Brady v. United States, 397 U.S. 742 (1970).

4 McMann v. Richardson, 397 U.S. 759, 771 (1970) (If a prisoner pleads guilty on the advice of

counsel, he must demonstrate that the advice was not “within the range of competence demanded

of attorneys in criminal cases.”)

such a pursuit would have uncovered a possible constitutional

infirmity in the proceedings.” Id. at 267. (Emphasis added.)

The standard for determining the validity of a guilty plea remains whether it “represents a

voluntary and intelligent choice among the alternative courses of action open to the defendant.”

North Carolina v. Alford, 400 U.S. 25, 31 (1970), citing Boykin v. Alabama, 395 U.S. 238, 242

(1969), Machibroda v. United States, 368 U.S. 487, 493 (1962), and Kercheval v. United States,

274 U.S. 220, 223 (1927). “While a guilty plea taken in open court is not invulnerable to collateral

attack in a post conviction proceeding, the defendant’s representations during the plea-taking carry

a strong presumption of verity and pose a ‘formidable barrier in any subsequent collateral

proceedings.’” Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (quoting Voytik v.

United States, 778 F.2d 1306, 1308 (8th Cir. 1985)). A defendant has a heavy burden to overcome

those admissions and show that his guilty plea was involuntary. Blackledge v. Allison, 431 U.S.

63, 72-74 (1977).

Hoes’ first two grounds for federal habeas relief center on non-jurisdictional claims that

were antecedent to his guilty pleas. In Ground One, he states “[t]he initial stop was a fishing

expedition which made my arrest unlawful.” (ECF No. 1, p. 5). In Ground Two, he asserts that

“[t]he prosecutor violated the [B]rady law (rule).” Id., p. 7. Both claims concern events that

occurred prior to the entry of his guilty pleas. Regarding the allegedly involuntary nature of his

guilty pleas, Hoes only states, “I involuntarily made a guilty plea on all three counts under threats,

duress, and coercion.” Id., p. 2. Such vague and general allegations are insufficient to support a

claim for for habeas relief. See Hollis v. United States, 796 F.2d 1043, 1046 (8th Cir. 1986);

Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong

presumption of verity. The subsequent presentation of conclusory allegations unsupported by

specifics is subject to summary dismissal, as are contentions that in the face of the record are

wholly incredible.”); Smith v. United States, 677 F.2d 39, 41 (8th Cir. 1982) (conclusory

allegations, unsupported by any specifics, are subject to summary dismissal); Bryson v. United

States, 268 F.3d 560, 562 (8th Cir. 2001) (brief, conclusory allegations that failed to cite to the

record insufficient to support claims of ineffective assistance of counsel); Hayes v. State, 280 Ark.

509, 660 S.W.2d 648 (1983) (conclusory allegations that are unsupported by the facts do not

provide a basis for either an evidentiary hearing or post-conviction relief); Greene v. State, 356

Ark. 59, 66-67, 146 S.W.3d 871, 877 (Ark. 2004) (same).

Hoes waived his complaint that the initial stop was an unlawful “fishing expedition,” and

that the Prosecuting Attorney had not given him Brady materials when he entered guilty pleas to

the offenses of conviction. His subsequent vague and conclusory allegations that his guilty pleas

were involuntary afford him no basis for relief. His first two grounds for relief are, therefore,

subject to summary dismissal.

C. Procedural Default

Additionally, a review of Hoes’ pending § 2254 Motion shows that he has procedurally

defaulted his third ground for relief - his claim of ineffective assistance of counsel.

Procedurally defaulted claims are “contentions of federal law which were not resolved on

the merits in the state proceeding due to [a federal habeas petitioner’s] failure to raise them as

required by state procedure.” Wainwright v. Sykes, 433 U.S. 72, 87 (1977). A federal habeas

petitioner must show that he “has exhausted the remedies available in the courts of the State” as a

precondition to seeking relief under the federal habeas statute. 28 U.S.C. § 2254(b)(1)(A). A

claim that is procedurally defaulted is considered to rest upon an adequate and independent state

ground and is thus insulated from federal habeas review. Clay v. Norris, 485 F.3d 1037, 1039 (8th

Cir. 2007) (citing Coleman v. Thompson, 501 U.S. 722, 732 (1991)).

In Arkansas, claims of ineffective assistance of counsel must be raised in a timely petition

for post-conviction relief pursuant to Rule 37.1. Newton v. State, 2014 Ark. 538, at *3, 453 S.W.3d

125, 127 (per curiam); see also Bond v. State, 2013 Ark. 298, at *7, 429 S.W.3d 185, 191 (rejecting

claim of conflicted counsel in Rule 37). Because Hoes pleaded guilty and did not pursue a direct

appeal, his Rule 37 petition was due 90 days after the date of entry of judgment. Ark. R. Crim. P.

37.2(c)(i). The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and, if a

petition is not filed within the prescribed period, a trial court lacks jurisdiction to grant post-

conviction relief. Harris v. State, 2017 Ark. App. 381, at *8–9, 526 S.W.3d 43, 49. The failure

to file a timely Rule 37 petition alleging ineffective assistance of trial counsel in the Arkansas state

courts results in a procedural default when a federal habeas petitioner attempts to raise those claims

in a § 2254 petition. See Walker v. Lockhart, 852 F.2d 379, 381 (8th Cir. 1988), cert. denied, 489

U.S. 1088 (1989).

Here, the date of judgment is June 11, 2024, the date when the state court entered its

Sentencing Order. Pursuant to Rule 37.2(c)(i), Hoes had 90 days from that date, or until September

9, 2024, to file a timely petition for post-conviction relief pursuant to Rule 37.1. Hoes did not

raise any claims of ineffective assistance of counsel in the state court in a timely Rule 37 petition

for post-conviction relief. Instead, he filed his current § 2254 Motion in this Court on August 14,

2024, and his Motion makes clear that he had not previously filed for post-conviction relief in state

court. (ECF No. 1, pp. 3, 6, 9). The state court record confirms that no petition for post-conviction

relief pursuant to Rule 37.1 was ever filed by Hoes in state court, and the time to do so has passed.

His claim of ineffective assistance of counsel before this Court is, therefore, procedurally

defaulted.

In Martinez v. Ryan, 566 U.S. 1 (2012), the United States Supreme Court reaffirmed the

general rule of Coleman v. Thompson, 501 U.S. 722 (1991), that a prisoner bears the risk of an

attorney’s negligence in state post-conviction review. Because such errors are not considered

external to the petitioner, they cannot serve as “cause” to excuse a procedural default in federal

habeas. The Court, however, created a “narrow exception” to this general rule, holding that

“where, under state law, claims of ineffective assistance of counsel must be raised in an initial-

review collateral proceeding, a procedural default may not bar a federal habeas court from hearing

a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding,

there was no counsel or counsel in the proceeding was ineffective.” Martinez, 566 U.S. at 17

(emphasis added). This plain language indicates that the narrow exception to procedural default

applies only when an initial collateral review proceeding was initiated.

Reinforcing that message, the Martinez Court made it exceedingly clear that Coleman’s

rules charging the prisoner with fault for his or his counsel’s failings in post-conviction “governs

in all but the limited circumstances” presented in Martinez itself, which included the actual timely

and proper initiation of state post-conviction collateral proceedings. See Martinez, 566 U.S. at 16.

The Court explained its reasoning:

“[a]llowing a federal habeas court to hear a claim of ineffective assistance of trial

counsel when an attorney’s errors (or the absence of an attorney) caused a

procedural default in an initial-review collateral proceeding acknowledges, as an

equitable matter, that the initial-review collateral proceeding, if undertaken without

counsel or with ineffective counsel, may not have been sufficient to ensure that

proper consideration was given to a substantial claim. From this it follows that,

when a State requires a prisoner to raise an ineffective-assistance-of-trial counsel

claim in a collateral proceeding, a prisoner may establish cause for a default of an

ineffective-assistance claim in two circumstances. The first is where the state

courts did not appoint counsel in the initial-review collateral proceeding for a claim

of ineffective-assistance at trial. The second is where appointed counsel in the

initial-review collateral proceeding, when the claim should have been raised was

ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984).”

Martinez, 566 U.S. at 14 (emphasis added).

Under the equitable principles applied in Martinez, the absence of counsel on initial post-

conviction collateral review is “cause” to excuse the default of a substantial ineffective assistance

of trial counsel claim only when a State fails to appoint counsel after a petitioner properly has

initiated those proceedings to challenge his trial counsel’s performance. See, e.g., Jones v. Penn.

Bd. of Probation and Parole, 492 F. App’x 242, 246-47 (3rd Cir. 2012), cert. denied, 568 U.S.

1167 (2013); Castillo v. Ryan, No. 11-571-TUC-JGZ (LAB), 2013 WL 3282547, at *5 (D. Ariz.

June 28, 2013); Uptegrove v. Villmer, No. 12-0456-CV, 2012 WL 3637707, at *3 n.2 (W.D. Mo.

Aug. 22, 2012); Trust v. Larkins, No. 4:09-CV-1101, 2012 WL 4479088, at *8 (E.D. Mo. July 20,

2012), report and recommendation adopted by, 2012 WL 4480719 (E.D. Mo. Sept. 28, 2012);

Anderson v. Koster, No. 11-1227-CV, 2012 WL 1898781, at *9 (W.D. Mo. May 23, 2012); Bland

v. Hobbs, No. 5:11-CV-286, 2012 WL 2389904, at *3 n.5 (E.D. Ark. June 12, 2012), proposed

findings and recommendations adopted by, 2012 WL 2874118 (E.D. Ark. July 13, 2012). “The

Supreme Court was adamant that its holding in Martinez created only a ‘limited’ and ‘narrow’

exception to the rule established in Coleman [v. Thompson, 501 U.S. 722 (1991)].” Jones v. Penn.

Bd., 492 F. App’x at 246 (citing Martinez, 566 U.S. at 9, 15). “Were it otherwise, the Martinez

rule would encourage sandbagging substantial claims of ineffective assistance and could

potentially apply to any defendant who failed to petition for state collateral review.” Id. at 247.

Hoes never filed a Rule 37 petition in state court to assert any claims of ineffective

assistance of trial counsel, so the narrow exception set forth in Martinez does not apply to excuse

his procedural default. See, e.g., Bell v. Kelley, No. 5:17-CV-00234-SWW/JTR, 2018 WL

3653317 at *6 (E.D. Ark. June 29, 2018) (“because Bell failed to file a timely Rule 37 petition,

Martinez does not apply to his ineffective assistance of counsel claim”).

Accordingly, Hoes’ third ground for federal habeas relief, his claim of ineffective

assistance of counsel, is inexcusably procedurally defaulted and should be dismissed.

III. CONCLUSION

For the reasons discussed above, it is RECOMMENDED that Hoes’ pending Motion Under

28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1) be

DISMISSED WITHOUT PREJUDICE.

The parties have fourteen (14) days from receipt of the Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court.

DATED this 5th day of December 2024.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE