IN THE UNITED STATES DISTRICT COURT FILED EASTERN DISTRICT OF ARKANSAS U.S.DIST.CT. E.D.ARK. MAY 6, 1997 JIMMY DOYLE BUMGARDNER, ) Petitioner, ) No. PB-C-97-205 ) v. ) PETITION FOR WRIT OF ) HABEAS CORPUS LARRY NORRIS, Director of the ) 28 U.S.C. 2254 Arkansas Department of Correction,) Respondent. ) PETITION FOR WRIT OF HABEAS CORPUS The petitioner, Jimmy Doyle Bumgardner, ADC 103669, petitions the court for a writ of habeas corpus under 28 U.S.C. 2241 & 2254: 1. The petitioner is in the custody of respondent under multiple judgments of con- viction in Arkansas courts: County Case Number Offense Date Plea Date Sentence Grant CR93-69 10-1-93 4-21-94 480 months Saline CR93-409 11-1-93 4-21-94 120 months concurrent Faulkner CR94-87-88 1-24-94 6-13-94 84 months concurrent This petition only involves the Grant County conviction. Since others will say it, petitioner admits that he was a drug dealer. He is now a convict whose sentence is alleged to have been unconstitutionally extended. Petitioner has served enough time to be paroled on the other convictions, so he remains in physical custody as a result of the Grant County conviction. 2. No state petition for post-conviction relief was filed within the time required by state law. Thus, petitioner has no available state remedy for this claim. The grounds to excuse the expected state claim of procedural default are stated below on page 4. GROUND FOR RELIEF PETITIONER WAS DENIED DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW BECAUSE HE WAS SENTENCED UNDER A BELIEF THAT HIS SENTENCE WOULD BE REDUCED AFTER IT WAS IMPOSED. PETITIONER WAS EXTORTED FOR MONEY TO REDUCE THE SENTENCE, HE DID NOT PAY IT, AND HIS SENTENCE WAS NOT REDUCED. ALSO, FALSE TESTIMONY WAS GIVEN AT HIS SUPPRESSION HEARING TO FACILITATE THE PLAN. 3. On April 21, 1994, petitioner pled to a 480 month sentence in Grant County Circuit Court for manufacturing a controlled substance (methamphetamine) in violation of Ark. Code Ann. 5-64-401. The plea was negotiated between his lawyer and Grant County Prosecuting Attorney Dan Harmon. Petitioner also agreed to forfeiture of three pickup trucks, a three wheeler, and five firearms to resolve the case. 4. The search of petitioner's property was clearly illegal under the Fourth Amendment to the U.S. Constitution and Arkansas law. A motion to suppress was filed and litigated. After the suppression hearing, however, where Drug Task Force Officer's Roger Walls' testimony was credited by the Grant County Circuit Court, the motion to suppress was denied. (See 12, below.) Harmon told petitioner's defense counsel that petitioner would be sentenced to life by a jury if he proceeded to trial, and he should accordingly plead to 40 years. 5. The prosecutor refused to agree to a conditional plea under Ark.R.Crim.P. 24.3(b) for what was later determined to be a personal ulterior motive (stated in 8, below). This motive denied petitioner due process and equal protection of the law in violation of the Fifth and Fourteenth Amemdments to the U.S. Constitution. 6. Members of petitioner's family talked to another lawyer just before the plea was entered, and he told them that the sentence would be reduced for a payment of $30,000. Petitioner at first understood that this was for a fine or forfeiture. He pled guilty expecting to get his sentence reduced, and there was a state procedure which permitted it. 7. In early August, 1994, he was told by this lawyer (who is now dead) that $40,000 (not $30,000) was needed to reduce the sentence. Petitioner was even brought to Grant County by the Sheriff's Office apparently so the sentence could be reduced. 8. At this same time, petitioner's father obtained a cashier's check payable to himself for $10,000 to pay toward the cost of reducing the sentence. He understood a partial payment would suffice and a payment schedule would be adopted. He endorsed this check and tendered it to the second attorney who said that the Prosecuting Attorney would refuse it because it was not in cash and it all was not tendered. Petitioner and his family figured out that the payment to reduce the sentence was not for a lawful purpose. 9. Petitioner was returned to prison without anything happening to his sentence, and the time expired to reduce it. As a result of the foregoing, petitioner did not get the sentence concessions contemplated in the plea agreement that his sentence would later be reduced. 10. He would not have plead guilty to 40 years and waived a viable search and seizure issue on appeal if he had known that he had to pay $40,000 illegally to get the sentence reduced. 11. This is a constitutional violation since the plea offer from the state was not based on petitioner's individual culpability and responsibility for the crime or a reasoned resolution of the case, including the search and seizure issue, but was based on a personal motive of the Prosecuting Attorney. 12. Walls' testimony at the suppression hearing was based on his personal motive and was manifestly false and calculated to cause denial of the suppression motion. EXCUSE FOR PROCEDURAL DEFAULT 13. This apparent procedural default is excused under the Supreme Court's "cause" and "prejudice" cases. It is chargeable against the state by the action of the Prosecuting Attorney. See Amadeo v. Zant, 486 U.S. 214, 222-24 (1986); Coleman v. Thompson, 501 U.S. 722, 753 (1991). No one would have believed petitioner until an indictment resulted under similar circumstances. United States v. Harmon, Walls, et al., LR-CR-97-7 (filed April 11, 1997). Petitioner had to rely on the federal government to investigate. In light of the indictment, petitioner has the factual support to support his claim that was previously lacking. 14. Also, the issue came together for petitioner after the time to file the state petition expired. Blair v. Armontrout, 916 F.2d 1310, 1325-26 (8th Cir.1990). 15. Late defense counsel cannot be expected to have pursued this issue in court because of his own knowledge. See, e.g., Hollis v. Davis, 941 F.2d 1471, 1478-78 (11th Cir. 1991); Goodwin v. Balkcom, 684 F.2d 794, 809 n. 17 (11th Cir.1982), cert. denied, 460 U.S. 1098 (1983). 16. Jurisdiction is also warranted under the "miscarriage of justice" exception. United States v. Young, 470 U.S. 1, 15 (1985); United States v. Frady, 456 U.S. 152, 163 n. 14 (1986); United States v. Olano, 507 U.S. 725, 736 (1993). Respectfully submitted, John Wesley Hall, Jr. Ark. Bar No. 73047 523 West Third Street Little Rock, Arkansas 72201-2228 (501) 371-9131 / fax (501) 378-0888 Attorney for Petitioner VERIFICATION STATE OF ARKANSAS ) COUNTY OF PULASKI ) ss: I swear that the foregoing is true. _______________________________ Jimmy Doyle Bumgardner Sworn and subscribed to before me this 5th day of May, 1997. _______________________________ Notary Public My commission expires: 9-1-00 CERTIFICATE OF SERVICE I, John Wesley Hall, Jr., certify that I have served a copy of this pleading on Larry Norris, ADC Administration Building, 8000 West Seventh Street, Pine Bluff, AR 71801 by mail and the Attorney General's Office, 323 Center Street, Suite 200, Little Rock, Arkansas 72201 by personal service on Kelly Hill, Deputy Attorney General, on May 6, 1997. ______________________________ John Wesley Hall, Jr.