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.

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