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Stewart v. Kelley

United States Court of Appeals, Eighth Circuit

May 29, 2018

Billy Wayne Stewart, Sr. Plaintiff-Appellant
v.
Wendy Kelley, Director, Arkansas Department of Correction Defendant-Appellee

          Submitted: January 9, 2018

          Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff.

          Before LOKEN, BEAM, and KELLY, Circuit Judges.

          LOKEN, CIRCUIT JUDGE.

         In September 2011, a Garland County, Arkansas jury found Billy Wayne Stewart, Sr. guilty of raping J.H., an adult woman with the mental capacity of a young child. See Ark. Code Ann. § 5-14-103(a)(2)(B) (2011 Supp.). Under Arkansas law, after finding a defendant guilty of a felony offense, the same jury "determine[s] a sentence within the statutory range, " unless both parties waive jury sentencing with the court's consent. See Ark. Code Ann. § 16-97-101. During Stewart's jury sentencing, the prosecutor introduced evidence of his seven prior felony convictions, which made him a "habitual offender" punishable under Arkansas law by imprisonment for ten years to life. See §§ 5-4-501(b)(2)(A) (2011 Supp.), 5-14-103(c)(1). The trial judge erroneously instructed the jury that Stewart would be eligible for parole after serving 70% of his sentence if sentenced to a term of years. In fact, he was ineligible for parole because of a prior violent felony conviction.

         The jury sentenced Stewart to seventy years in prison. The Supreme Court of Arkansas affirmed the conviction on direct appeal. Stewart v. State, 423 S.W.3d 69 (Ark. 2012). Stewart filed a pro se petition for post-conviction relief under Arkansas Rule of Criminal Procedure 37.1. The Garland County Circuit Court denied the petition after a hearing, and the Supreme Court of Arkansas affirmed. Stewart v. State, 443 S.W.3d 538 (Ark. 2014). Stewart then filed a timely pro se federal habeas petition, raising numerous claims. The district court[1] appointed counsel and directed supplemental briefing on the claim that trial counsel provided ineffective assistance when he failed to object to the erroneous sentencing instruction. The court then denied habeas relief but granted a certificate of appealability on this issue. Reviewing the district court's decision de novo, we affirm.

         I. Background

         Stewart testified at trial that J.H.'s mother and stepfather took him in while he was searching for a job. He admitted to having sex with J.H. while staying at the family residence, and J.H. had Stewart's child. After the jury found Stewart guilty of rape, the court instructed, without objection, that a sentence of life in prison would render Stewart ineligible for parole, but he would be eligible for parole upon serving 70% of a sentence to a term of years. Unbeknownst to the court and counsel, Stewart's prior conviction for first degree battery made him ineligible for parole under Arkansas law. See §§ 16-93-609(b), 5-4-501(d)(2)(A)(vi) (2011 Supp.).

         The court instructed the jury that it was permitted to consider the possibility that Stewart would be paroled. During closing arguments, both attorneys referenced parole eligibility. The prosecutor, emphasizing Stewart's serious crime and prior criminal convictions, urged that he be sentenced to life in prison or, alternatively, "anything that will keep him in prison for the rest of his life." Defense counsel noted Stewart would be eligible for parole after serving 70% of a term of years, told the jury that eligibility did not guarantee release, and urged the jury take Stewart's age into account (he was forty-seven years old at the time). After twenty-seven minutes of deliberation, the jury sentenced Stewart to seventy years in prison.

         On direct appeal, represented by different counsel, Stewart argued only that the trial court erred in excluding evidence of J.H.'s prior sexual conduct. Stewart's pro se petition for post-conviction relief raised three grounds: that barring cross examination of J.H. about her prior sexual conduct violated his Sixth Amendment right of confrontation; ineffective assistance of trial counsel during the guilt phase; and a due process claim that the State's trial preparation coerced J.H.'s testimony. In a supplemental petition, Stewart alleged that the prosecutor made a written pretrial ten-year plea offer that was never presented to Stewart (after a hearing, the trial court found the document was a forgery). Testifying at the Rule 37.1 hearing, Stewart raised a new complaint:

[The prosecutor] explained to the jury in depth what the seventy percent law is. When I get to prison they put me on a one hundred percent. In my Rule 37 you'll see that it speaks of the coercion and misleading the jury into believing that I'm gonna do seventy percent. . . .
THE COURT: Okay, now that is not grounds for Rule 37, Mr. Stewart.
DEFENDANT STEWART: Yes, ma'am, but I did include it in there. [We find no reference to this issue in the ...

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