Opinion
2:24-CV-00115-LPR-ERE
06-21-2024
DAMION BROWN, ADC #138883 PETITIONER v. DEXTER PAYNE, Director of the Arkansas Division of Correction RESPONDENT
RECOMMENDED DISPOSITION
This Recommendation (“RD”) has been sent to United States District Judge Lee P. Rudofsky. You may file written objections to all or part of this RD. Objections filed must: (1) specifically explain the factual and/or legal basis for the objection; and (2) be received by the Clerk of this Court within fourteen days of the date of this RD. If you do not object, you risk waiving the right to appeal questions of fact and Judge Rudofsky can adopt this RD without independently reviewing the record.
I. SUMMARY
Petitioner Damion Brown, an Arkansas Division of Correction (“ADC”) inmate, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Docs. 2. He asks the Court to overturn his 120-month sentence, claiming that it is “facially invalid.” Because it plainly appears from the face of the petition that Mr. Brown is not entitled to habeas relief, his petition should be summarily dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
In conducting the initial review of a habeas petition required Rule 4, 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.” As explained in the Advisory Committee's Note to Rule 4, “it is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.”
The background is taken from the petition and state court records, available at the Arkansas Administrative Office of the Courts Public Court Connect Website, accessible at https://www.arcourts.gov. See Stutzka v. McCarville, 420 F.3d 757, 761 (8th Cir. 2005) (holding that a court “may take judicial notice of judicial opinions and public records”) (citations omitted).
In September 2015, a jury convicted Mr. Brown of second-degree unlawful discharge of a firearm from a vehicle and of being a felon in possession of a firearm. State v. Damion Raynell Brown, No. 09CR-14-94 (Chicot County Cir. Court). A December 7, 2015, Amended Sentencing Order notes that Mr. Brown's 120-month sentence was based on an enhancement under Arkansas Code Annotated § 16-90121, which applies to convictions for “[s]econd or subsequent felon[ies] with [a] firearm.”
Ark. Cod. Ann. § 16-90-121 reads:
Any person who is found guilty of or pleads guilty or nolo contendere to a second or subsequent felony involving the use of a firearm shall be sentenced to a minimum term of imprisonment of ten (10) years in the Division of Correction without eligibility of parole or community correction transfer but subject to reduction by meritorious good-time credit or earned release credits.
Mr. Brown appealed. The Arkansas Court of Appeals affirmed the conviction and sentence. The mandate issued on September 27, 2016. Brown v. State, 2016 Ark.App. 381, 1 (2016). Mr. Brown did not file a Rule 37 petition. Nothing happened in the case for six-and-a-half years, until, on March 22, 2023, Mr. filed a petition to correct sentence alleging that it is “facially invalid,” the same claim raised in the pending habeas petition. On April 4, 2023, the state court denied the petition as both untimely and meritless. Mr. Brown did not appeal. However, on June 14, 2023, Mr. Brown filed a petition for writ of habeas corpus in Izard County, Arkansas. Brown v. Payne, No. 33CV-23-88 (Izard County Cir. Court), raising the same issues. The petition was dismissed as meritless. Mr. Brown's appeal of the state habeas petition also was denied.
On June 14, 2024, Mr. Brown filed the pending § 2254 habeas petition alleging that his sentence is “facially invalid” because the Chicot County Circuit Court “illegally amended” his sentence after he had “already been sentenced by the jury” who did not impose the enhancement. Doc. 2 at 1-2.
III. DISCUSSION
A Chicot County jury found Mr. Brown guilty of “second or subsequent” firearm offenses, triggering the § 16-90-121 enhancement, which “mandates that a defendant serve a minimum of ten years in prison before becoming eligible for parole.” Gentry v. State, 2021 Ark. 26, 14-15 (2021). Based on the statute, the sentencing court was required to increase the “presumptive sentence [of] 84 months” to the minimum sentence of 120 months, which it did. Mr. Brown's argument that this is an illegal sentence is meritless. “An illegal sentence is illegal on its face. When the sentence given is within the maximum prescribed by law it is not illegal on its face.” Williams v. State, No. CACR03-1056, 2004 WL 1198582, at *2 (Ark. Ct. App. June 2, 2004) (citations omitted). Mr. Brown's sentence complies with Ark. Code Ann. § 16-90-121 and is within the maximum prescribed by law.
Additionally, Mr. Brown's petition does not allege any constitutional error. “To be actionable, a habeas Petition must allege facts sufficient to support a claim that the petitioner's rights have been violated under the Constitution, laws or treaties of the United States.” Paskel v. Doe, No. 4:22-CV-00726-LPR-JTR, 2022 WL 17970709, at *2 (E.D. Ark. Nov. 1, 2022). “It is not the province of a federal habeas court to reexamine state court determinations on questions of state law.” Keller v. Pringle, 867 F.3d 1072, 1076 (8th Cir. 2017).
Report and recommendation adopted, No. 4:22-CV-00726-LPR-JTR, 2022 WL 17970368 (E.D. Ark. Dec. 27, 2022).
It plainly appears that Mr. Brown is not entitled to habeas relief, and his petition should be dismissed with prejudice.
IV. CONCLUSION
IT IS THEREFORE RECOMMENDED that:
1. Petitioner Damion Brown's petition for writ of habeas corpus (Doc. 2) be dismissed, with prejudice.
2. That a Certificate of Appealability be DENIED.
A Certificate of Appealability should be denied because Petitioner has not shown that reasonable jurists could debate whether his claims should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 u.s. 322, 336 (2003).