Lewis v. State of Arkansas

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
TRAVIS CAIN LEWIS 	PETITIONER
v. 	No. 4:24-cv-04022
DEXTER PAYNE, Director of the Arkansas
Division of Correction 	RESPONDENT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Travis Cain Lewis (“Lewis”) filed a Petition under 28 U.S.C. § 2254 for a Writ of Habeas
Corpus on March 7, 2024. ECF No. 1. On April 15, 2024, Dexter Payne, the Director of the
Arkansas Division of Correction (“Respondent”) filed a Response to the Petition. ECF No. 9. The
matter is now ripe for consideration.
This Petition was referred for findings of fact, conclusions of law, and recommendations
for the disposition of the case. The Court has reviewed the Petition, Response, and all exhibits
submitted and finds the Petition should be DENIED.
I. 	BACKGROUND
On August 28, 2023, a criminal information was filed in Little River County case number
41CR-23-99, alleging between July 28, 2023, and August 14, 2023, Lewis committed the crimes
of failure to register as a sex offender or report an address change, possession of a controlled
substance, aggravated robbery, aggravated assault on a family or household member, theft of
property, and escape. ECF No. 9-1. An affidavit for Lewis’s initial arrest alleged on July 28, 2023,
Lewis stole $70, a cell phone, and a truck from his grandmother, Frances Kitchens. ECF No. 9-2.
Kitchens told police Lewis grabbed her face, slapped her, pointed a gun at her, and
threatened to shoot her. Id. Lewis’s exact location was unknown at the time of the affidavit, but
Mrs. Kitchens told police he had been living with her on and off at 408 N Madden Street. Id. Based
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on this affidavit, a state arrest warrant issued for Lewis on July 31, 2023, for aggravated robbery
and aggravated assault on a family or household member. ECF No. 9-3. On August 7, 2023, police
arrested Lewis at 408 N Madden Street for the active felony warrant. ECF No. 9-4. During the
search incident to his arrest, officers located less than two grams of methamphetamine and charged
him with possession of a controlled substance. Id.
On August 11, 2023, Lewis was seen on surveillance cameras escaping through the fence
at the back of the Little River County Detention Center and leaving on foot. ECF No. 9-5. A citizen
reported seeing Lewis run across Northwest Front Street in Ashdown, Arkansas, and his clothing
was located at a residence on Little River County Road 43 in Ashdown. Id. Officers with the
Ashdown Police Department located Lewis sitting under a tree on Arkansas State Highway 32,
and the Little River Sheriff’s Department took him back into custody. Id.
Lewis later confirmed his current address was 408 N Madden Street in a jail document.
ECF No. 9-6. Id. Lewis is a registered sex offender with a last known registered address in Hooks,
Texas. Id. Based on his failure to make any attempt to register with the Little River County
Sheriff’s Office, he was charged with failure to register as a sex offender on August 14, 2023. Id.
On December 12, 2023, Lewis pled guilty to failure to register as a sex offender, possession
of controlled substance, and escape in the second degree. ECF No. 9-7. Lewis was sentenced to 15
years in the Arkansas Division of Correction, followed by 16 years of suspended imposition of
sentence. Id. In his plea agreement, Lewis indicated he understood the rights he was waiving by
pleading guilty, including the right to appeal to the Arkansas Supreme Court. ECF No. 9-8. Lewis
is currently being held in the Little River County Detention Center awaiting transfer to the
Arkansas Division of Correction. ECF No. 1.
In the instant Petition, Lewis states describes two grounds for relief:
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GROUND ONE: Unlawful arrest…When I was originally arrested before my
escape, the officer did not have permission to enter the home I was found in. The
officer also acted without a search warrant. The owner of the home will also attest
to this. Her phone # is …. Thus rendering all other charges fruit of the poisonous
tree…
GROUND TWO: Fruit of the poisonous tree Doctrine…Because my original arrest
was unlawful, the charges that I remained convicted of should fall under fruit of the
poisonous tree doctrine.
ECF No. 1, pp. 5-6.
Lewis did not file a direct appeal or Rule 37.1 petition seeking post-conviction relief in
state court. 1 Lewis states he did not present these claims to the highest state court, “because I wish
not to challenge my conviction, but rather if my detention is legal.” ECF No. 1, p. 12.
Respondent first argues Lewis knowingly and intelligently entered his plea of guilty which
waived his unlawful arrest claim. Second, Respondent argues Lewis’s claims have no merit
because they fail to establish the existence of a constitutional infirmity. ECF No. 9, p. 6.
Respondent asks this Court to dismiss and deny his Petition with prejudice and deny a certificate
of appealability with prejudice. Id. 	While Respondent does not raise the issue of exhaustion of
state court remedies, based on the unambiguous allegations in the Petition, it appears Petitioner
did not exhaust all available state court remedies as required by statute.
II. 	DISCUSSION
Under the plain language of 28 U.S.C. § 2254(b), Lewis’s Petition cannot be granted
“unless it appears that—(A) the applicant has exhausted the remedies available in the courts of the
State; or (B) (i) there is an absence of available State corrective process; or (ii) circumstances exist
that render such process ineffective to protect the rights of the applicant.” Further, Section 2254
(c) states:
1 Respondent states in a footnote on page 3 of his Response, “Because Lewis pleaded guilty, he was not entitled to a
direct appeal. See Ark. R. App. P. Crim. 1(a).” ECF No. 9, p. 3.
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An applicant shall not be deemed to have exhausted the remedies available in the
courts of the State, within the meaning of this section, if he has the right under the
law of the State to raise, by any available procedure, the question presented.
As previously stated, Lewis acknowledges in his Petition he did not seek direct review
from the Arkansas Appellate courts, nor did he seek post-conviction relief from Arkansas state
courts. Clearly, Lewis has not availed himself of all available state court procedures. Further, there
has been no demonstration, or even assertion by Lewis, of the absence of an available State
corrective process or any other circumstance which would render the process ineffective to protect
Lewis’s rights. Lewis simply elected not to utilize the available state court procedures.
Accordingly, the § 2254 Petition should be dismissed for failure to exhaust available state
remedies.
III. 	CONCLUSION
Based on the foregoing, IT IS RECOMMENDED the Petition under 28 U.S.C. § 2254
(ECF No. 1) be DISMISSED without prejudice.
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
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 19th day of April 2024.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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