Gillard v. Miller County, Arkansas

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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).
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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.”
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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
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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
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