Billy Wayne Stewart, Sr. Plaintiff-Appellant
Wendy Kelley, Director, Arkansas Department of Correction Defendant-Appellee
Submitted: January 9, 2018
from United States District Court for the Eastern District of
Arkansas - Pine Bluff.
LOKEN, BEAM, and KELLY, Circuit Judges.
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.
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 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.
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.).
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.
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.
DEFENDANT STEWART: Yes, ma'am, but I did include it in
there. [We find no reference to this issue in the ...