4:24-cv-04096•Gillard v. Miller County, Arkansas
Gesamter Gesetzestext
1 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION ROBERT GILLARD PETITIONER v. Case No. 4:24-cv-04096 MILLER COUNTY, ARKANSAS RESPONDENT MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION Robert Gillard (“Gillard”) filed a Petition for Habeas Corpus Relief pursuant 28 U.S.C. § 2254 on September 12, 2024. ECF No. 1. The Petition was referred for findings of fact, conclusions of law, and recommendations for the disposition of the case. Gillard proceeds pro se and, because his Petition has yet to be served, no appearance has been made by, or on behalf of, the Respondent. For the reasons discussed below, the Court recommends that Gillard's habeas corpus petition be summarily dismissed pursuant to Rule 4 of The Rules Governing Section 2254 Cases in The United States District Courts. 1. Background: According to the Petition, Gillard is an inmate in the Miller County Detention Facility in Texarkana, Arkansas. He is currently being held there pending trial on charges of negligent homicide.0F 1 As far as the Court can determine from reviewing the Petition, Gillard makes the following claims: -false imprisonment and ineffective counsel -he has been in jail for 2 years and “they have not gave me an offer or havenit spoke with attorney” -“I have been try to talk to my lawyer sence 6 months ago I don’t know the status of my case is has exceeded trial limitation” ECF No. 1. 1 https://caseinfo.arcourts.gov/opad/case/46CR-22-533 (accessed November 12, 2024). Case 4:24-cv-04096-SOH Document 8 Filed 11/13/24 Page 1 of 4 PageID #: <pageID>
2 2. Discussion: a. Section 2254. Habeas corpus has long been held to be a post-conviction remedy. See Peyton v. Rowe, 391 U.S. 54, 59 (1968). See also Jones v. Perkins, 245 U.S. 390, 391 (1918) (stating that it “is well settled that in the absence of exceptional circumstances in criminal cases the regular judicial procedure should be followed and habeas corpus should not be granted in advance of trial”). Section 2254 is available only for individuals who are “in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a) and (b) (emphasis added). See Dickerson v. State of Louisiana, 816 F.2d 220, 224 (5th Cir.) (detainee's “petition under 28 U.S.C. § 2254 is improper because that section applies only to posttrial situations and affords relief to a petitioner ‘in custody pursuant to the judgment of a state court’ ”), cert. denied, 484 U.S. 956 (1987). This case is different from most Federal habeas corpus proceedings initiated by individuals in state custody. Gillard is not challenging a state criminal conviction or sentence, or any other final state court judgment. To the contrary, Gillard admits several times in his Petition that he is awaiting trial and he has not pled guilty. Here, Gillard is not presently in custody pursuant to a final judgment of a state court, so the remedy provided by § 2254 is not available to him at this time. b. Summary Dismissal. Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts provides, in part, that a district court shall summarily dismiss a 28 U.S.C. § 2254 petition: “If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” Case 4:24-cv-04096-SOH Document 8 Filed 11/13/24 Page 2 of 4 PageID #: <pageID>
3 Here, it plainly appears Gillard is not entitled to relief because he is not “a person in custody pursuant to the judgment of a State court.” See 28 U.S.C. § 2254(a). Rather, he is a pretrial detainee who is still awaiting either a trial or a plea hearing. As § 2254 relief is not available to Gillard pre-judgment, the instant Petition must be denied and dismissed. c. Certificate of Appealability. The Court has also considered whether or not a certificate of appealability should issue. See 28 U.S.C. § 2253(c)(1)(A) (“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court”). To issue such a certificate, the Court must find a substantial showing of the denial of a federal right. See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). “A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Gillard has made no such a showing, and no certificate of appealability should issue. 3. Recommendation: Based on the foregoing, the Court recommends Gillard’s pro se Petition for Habeas Corpus Relief pursuant 28 U.S.C. § 2254 (ECF No. 1) be DENIED and dismissed without prejudice and that Gillard be notified of this denial and dismissal by the Clerk of this Court. It is further recommended that no certificate of appealability be issued. The Parties have fourteen (14) days from receipt of this 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 Case 4:24-cv-04096-SOH Document 8 Filed 11/13/24 Page 3 of 4 PageID #: <pageID>
4 reminded that objections must be both timely and specific to trigger de novo review by the district court. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990). DATED this 13th day of November 2024. /s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE Case 4:24-cv-04096-SOH Document 8 Filed 11/13/24 Page 4 of 4 PageID #: <pageID>
Was bedeutet dieser Text für Ihre Situation?
Kostenlose und unverbindliche Beratung
Schildern Sie uns Ihre Situation. Unser Team meldet sich per E-Mail bei Ihnen für Ihre Beratung.
Setzen Sie Ihre Recherche in ChatGPT oder Claude fort
Verbinden Sie Omnilex, um den Rechtskorpus über Ihren KI-Assistenten zu durchsuchen.