Petition for Writ of Certiorari — Tyrone Harris, Sr., Petitioner v. Arkansas

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19-7883

omy

Su^sr^eH^ourt. U.S.

FILED

JAN 1 3 2020

No.

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

PETITIONER

TYROME HARRIS, SR.

L

VS.

DEXTER PAYNE, DIRECTOR,

ARKANSAS DEPT. OF CORRECTION

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES DISTRICT COURT

PETITION FOR WRIT OF CERTIORARI

j

TYROME HARRIS, SR.

CUMMINS UNIT #121901

P.O. BOX 500

GRADY, ARKANSAS 71644

NO PHONE NUMBER

RIGINA

V.

*

Questions Presented

Mr. Harris alleges an obvious conflict between the criminal 16-93-609(b), and the

habitual offender statute 5-4-501(d)(2), that prohibits the two from being read in a harmonious

way. A reasoned de novo review of the statutes is warranted by this Court.

In finding no prejudice as required by law. This direct conflict shows that the two statutes

cannot be read harmoniously. Because the sentence imposed by 16-93-609(b) is prohibited by the

plain meaning of the later Ark. Code Ann. 5-4-501(d)(2), the earlier contradictory statute should

be deemed superceded.

In finding no prejudice the Federal District Court significantly misstated the version of

the facts. This case thus presents the following question:

Did the District Court err in deferring to the lower court’s finding, that Mr. Harris was not

prejudice during his guilty plea sentencing hearing.

List of Parties

[X]

All parties appear in the caption of the cover page.

[ ]

All parties do not appear in the caption of the cover page, a list of all parties to the

proceeding in the court whose judgment is subject of this petition is as follows:

Mr. Tyrome Harris

Mr. Dexter Payne, Director,

Arkansas Dept, of Correction

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Table of Contents

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Question Presented.

1

List of Parties

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Table of Contents

in

Table of Authorities

IV

Opinion Below

1

Jurisdiction.

1

Statutory and Constitutional Provisions

2

Statement of Case

3

Reasons for granting the writ.

4

Conclusion.

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Appendix A.

Judgment of the U.S. District Court

A1

Opinion and order U.S. District Court.

A2

Report and Recommendation.

A3

Appendix B

Arkansas Supreme Court opinion,

B1

Order denying Rule 37 petition.

B2

Appendix C

Judgment of the Eighth Circuit Court of Appeals

m

C1

Table of Authorities

United States Supreme Court

Booth v. Kelley, 882 F.3d 759, 762 (8th Cir. 2018)

Strickland v. Washington, 466 U.S. 668, 687 (1984)

Williams v. Taylor, 529 U.S. 362 (2002)

Arkansas Supreme Court

Clark v. State, 271 Ark. 866, 611 S.W.2d 502 (1981)

Johnson v. STate, 249 Ark. 208,458 S.W.2d 409 (1970)

Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006)

Statutes

16-90-103(d)

16-93-609(b); 16-93-609(d)

5-4-501(d)(2)

Arkansas Rules of Criminal Procedure

Ar. R. Crim. Proc. 24.4(d)

Ar. Acts 228.1

Ar. Act 280, 1007

Ar. Act 1805 of 2001

IV

Petition For Writ of Certiorari To

The United States District Court

The Petitioner, Mr. Tyrome Harris, Sr. respectfully prays a writ of certiorari issue to review

the judgment and opinion of the U.S. District Court, rendered in these proceedings on February

4, 2019.

Opinion Below

The U.S. District Court denied Petitioner’s Habeas Corpus in its case no. 5:18-CV-157 DPM.

The opinion is published, and is reprinted in Appendix “A” of this petition.

The order of the District Court is preprinted in Appendix “A” of this petition at page 2A.

Jurisdiction

The judgment of denial of the District Court is in Appendix “A” to this petition at page 1A

and was entered February 4, 2019. Amotion for rehearing was never filed.

The jurisdiction of this Court is invoked under 28 U.S.C. 1254.

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Statutory And Constitutional Provisions Involved

The following Statutory and Constitutional provisions are involved in the case.

U.S. Const. Amend. VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by

an impartial jury of the state and district wherein the crime shall have been committed, which

district shall have been previously -ascertained by law, and to be informed of the nature and

cause of the accusations, to be confronted with witnesses against him, to have compulsory

process for obtaining witnesses in his favor, and to have the assistance of counsel for his

defense.

U.S. Const. Amend XIV

Section 1. All persons bom or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal protection of the law

U.S.C. Section 2254.

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf of a person in custody pursuant to the

judgment of a State court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.

(B) the facts underlying the claim would be sufficient to establish by clear and convincing

evidence that but for constitutional error, no reasonable factfinder would have found the

applicant guilty of the underlying offense.

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Statement of Case

On February 8, 2016, Mr. Harris entered a conditional plea of guilty to Battery in the First

Degree a Class B felony.

His conditional plea was accepted, then sentenced to fifteen (15) years with an additional

five (5) years suspended imposition of sentence,

Prior to accepting the State’s offer Mr. Harris inquired, regarding the amount of time he

would have to serve.

Mr. Harris was told he would only serve one-third or five (5) years of his sentence dayfor-day or 100% of the sentence before being eligible for parole.

Mr. Harris now seeks this Court to review the district court’s order, so as to advance his

claim that an Arkansas statute which lengthens his parole eligibility once sentenced and

accepting the plea offer required only to serve one-third or five (5) years made in the plea

agreement.

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Reasons For Granting The Writ

The U.S. District Court erroneously found Mr. Harris did not receive ineffective

assistance of counsel.

This Court requires in making the familiar two-prong Strickland analysis test to claims of

ineffective assistance of counsel. The certiorari review must consider all the evidence in the

record, both which was admitted at the plea trial and that which was developed at the post­

conviction Rule 37 stage. Williams v. Taylor. 529 U.S. 362 (2002) Strickland, supra.

Under this test is whether that, Mr. Harris trial counsel was deficient in his performance,

and whether that performance prejudiced Mr. Harris, such that it ’’deprived Mr. Harris of a

fair sentencing proceeding.” Booth v. Kelley. 882 F.3d 759, 762 (8th Cir. 2018) (quoting

Strickland v. Washington. 466 U.S. 668, 687 (1984).

Under this test, it is appropriate to consider the evidence in light to the plea. It was clear

that the U.S. District Court disregarded this principle, by using the Strickland standard as it

has in several other cases. This Court should began its analysis by setting out the version of

facts given by the Arkansas Court ofAppeals and the U.S. District Court in both its opinions.

This Court went on to hold that a prisoner’s claim of ineffective assistance of counsel

must be established by the preponderance of the evidence, that the result of the criminal

proceeding would have been different. That decision would be diametrically different

opposed to this Court’s clearly established precedent because in Strickland, the prisoner need

only demonstrate a “reasonable probability that the results of the proceeding would have been

different.” Williams v. Tavlor. supra.

Both the Circuit Court and the U.S. District Court relied upon Strickland v. Washington

by holding that the presumption of trial counsel’s was not ineffective.

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In the instant case, Mr. Harris accepted a plea deal rather than opting to go to trial. Prior

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to accepting the State’s offer, Mr. Harris inquired of counsel regarding the amount of time he

would have to serve before being eligible for parole. During a hearing on February 8, 2016,

Mr. Harris entered a negotiated guilty plea to the offense of first-degree battery in case no.

CR-2014-3398, and ill exchange, the child-enhancement and habitual-offender allegations

were dropped in case CR-2014-3398 and case CR-2014-2754 was nolle processed.

The plea statement bn February 8, 2016, included a.provision that explained he “could”

receive a total sentence from five (5) to twenty (20) years in the State penitentiary and/or a

fine of up to $15,000.<

On March 7, 2016, Mr. Harris was sentenced to fifteen (15) years, with an additional five

(5) years suspended imposition of sentence. But during the plea hearing Mr. Harris entered a

plea of guilty to battery first degree with the “habitual" dropped along with the allegations. In

a specific (quid pro quo) exchange during the plea hearing, the prosecutor and Mr. Harris

both agreed. During the hearing Mr. Harris stated he fully understood the punishment range

.-■available should the matter have gone to trial on the “battery” charge.

However, the issue of parole eligibility was never discussed as required under Arkansas

Rules of Criminal Procedure 24.4(d), advice by the court as a condition of the plea

agreement. See Clark v,. State. 271 Ark. 866, 611 S.W.2d 502 (1981). Mr. Harris was led to

believe he would only be required to serve 1/3 or five (5) years day-for-day of the sentence

imposed.

Mr. Harris was never informed of all direct consequences of his plea agreement, nor any

effect on the sentencing range by the sentencing Judge under Rule 24.4.

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The main point Mr; Harris wants to make is if he was sentenced with 16-93-609(b) and if

16-93-609(b) refer to 5-4-501(d)(2), the habitual statute, then Mr. Harris is not having his

plea agreement honored. Why didn’t the court nor counsel bring up 16-93-609(b) at the plea

agreement hearing held on March 7, 2016.

Here, the statutes are in irreconcilable conflict. In Act 1805 of 2001, the General

Assembly declared this act to be known as the “Arkansas Criminal Code.” Ark. Code Ann. 54-501 (2011). The code governs the prosecution of any offense defined by the code

committed after January 1, 1976, Ark. Code Ann. 5-4-501.

No defendant convicted of an offense shall be sentenced to an extended term otherwise

than in accordance with title five chapter four, Ark. Code Ann. 5-4-501 (a).

The enhancement statute was created in Act 1805 of 200land is codified at Ark. Code

Ann. 16-93-609. It is a separate enhancement statute. It requires findings of fact. Johnson v.

State. 249 Ark. 208, 458 S.W.2d 409 (1970), and it has it’s own sentencing procedure, Ark.

Code Ann. 16-93-609 and in fact contradicted the statute with Ark. Code Ann. 5-4-501(a),

when presented with the challenge of construing Criminal statutes that were enacted at

different times, this should presume “that when the Arkansas General Assembly passed the

later act, it was well aware of the prior act.” A companion doctrine to the second or

subsequent violent offense statue is the habitual offender statute found in Ark. Code Ann. 1693-609 (2011) (originally enacted in 1953 Ark. Acts 228.1).

In 1975 the Arkansas legislature incorporated the Habitual Offender statute into Ark.

Criminal Code beginning at Ark. Code Ann. 5-4-501 (1975 Ark. Acts 280 § 1001). Because

the two statutes are in conflict, this should deem the other enhancement statute superceded

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and direct the Arkansas General Assembly to correct the problem by amending the Arkansas

Criminal Code.

Mr. Harris contends that the trial court moved to nolle proseque the child-enhancement

including the habitual offender allegations pursuant to Ark. Code Ann. 16-90-lQ3(d). It was

the understanding that Mr. Harris would receive no enhancements when the guilty plea was

rendered nor discussed by the trial judge under Ark. Rules Crim. Procedure 24.4 Advice by

Court.

Finally, Mr. Harris was prejudiced and would not have pleaded guilty had he had known

of the mandatory community placement of Act 1805 of 2001 enhancement. Mr. Harris was

led to believe he was being sentenced to five (5) years day-for-day of what was on his

sentence order. Failure to inform Mr. Harris of cumulative punishment for the same conduct

violates a double jeopardy challenge and should be reviewed de novo, with no deference.

Winkle v. State, 366 Ark. 318. 215 S.W.3d 482 12006V

Conclusion

For these reasons, a writ of certiorari should issue to review the judgment and opinion of

the United States District Court.

Respectfully submitted,

*7aia

Tyrome Harris, Sr.

Cummins Unit #121901

P.O. Box 500

Grady, Arkansas 71644-500

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