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Judge refuses to release case file to Little Rock man convicted on child porn charges

He seeks to overturn his conviction on child porn charges by Dale Ellis | March 21, 2023 at 4:58 a.m.
Great Seal of Arkansas in a court room in Washington County. Thursday, June 21, 2018,

A Little Rock man sentenced to serve a total of 29 years and 2 months in federal prison appeared before the judge who sentenced him Monday in an attempt to get his former attorney to turn over records he said are needed for a motion he is preparing in an effort to get his conviction overturned.

Devion Marquett Cumbie, 27, was sentenced by U.S. District Judge James M. Moody Jr. to 25 years in prison in January 2021, after Cumbie was convicted by a jury the previous June of extortion and production of child pornography. The following August, Moody sentenced Cumbie to an additional 100 months in prison, with 50 months to be served consecutively with his previous sentence, for a total of 350 months. According to the Bureau of Prisons, Cumbie is eligible for release Oct. 4, 2043.

On March 17, 2022, the 8th Circuit Court of Appeals upheld Cumbie's sentence for child pornography and extortion and on May 12, 2022, the 8th Circuit denied his petition for an en banc, or full court, hearing.

Last October, Cumbie filed a motion in district court asking Moody to order his former attorney, Robbie Golden of Little Rock, to turn over Cumbie's file, including the pre-sentence report compiled by the U.S Probation Office prior to his sentencing hearing and a recording and transcript of a telephone conversation he had with Sandi Hilliard, whom he identified as the mother of his baby.

In his motion, Cumbie said that the recording or transcript contains "highly exculpating evidence with, if it had been presented at trial, would have undermined confidence in a guilty verdict."

Cumbie said in the motion that he had asked Golden to release the file to him "on numerous occasions over several months," and Golden had agreed but had failed to follow through.

Golden represented Cumbie at his trial but was no longer on his case. Representing Cumbie for the hearing Monday was John Wesley Hall Jr. of Little Rock.

"What have you and Mr. Golden worked out so far with respect to Mr. Cumbie's file?" Moody asked Hall.

"What he's specifically asking for is the [pre-sentence report]," Hall said, "which he can't have. He has access to it through his counselor at the [Bureau of Prisons], and he can see it anytime the counselor will let him in."

The telephone call in question, Hall said, had been provided to a family member.

"There is no transcript, but he can prepare a transcript himself," he said. "It's not that long of a phone call."

"It sounds like Mr. Cumbie was having trouble getting the attention of the counselor so he could see his pre-sentence report," Moody said.

"Counselors don't have an open door," Hall said. "You have to make an appointment to get in to see them. ... The counselor can't let it out of his office. He can go in and read it, make notes or whatever."

Hall said a document that would possibly be of more value than the pre-sentence report would be the transcript of his sentencing hearing.

Moody questioned whether the decision to order the release of Cumbie's file should even be before him, noting that, "the Bureau of Prisons doesn't answer to me."

"He can't have [the pre-sentence report], so that is denied," Moody said. "It sounds like the request for the audio tape is moot at this point, since his family has it. ... So, what's left?"

Hall said the "prudent thing to do" would be to get the file from Golden, who was present at the hearing and told Moody he would be happy to turn the file over to Hall.

"Suits me as long as you don't send [Cumbie] something he's not supposed to have," Moody said to Hall.

"Don't worry about that," Hall said.

"I'm not," Moody replied.

Following the hearing, Hall said the problem Cumbie has described about getting through to his counselor is not unique to Cumbie.

"That's a common problem for anybody in federal prison," he said. "The counselors there, a lot of times, simply won't answer their phone."

Cumbie has been assigned to FCI Pollack Medium in Pollack, La.

Just prior to Cumbie's hearing, Moody sentenced Cumbie's wife, Sasi Cervantes, to 16 months in federal prison for perjury, regarding claims she had made that another man had sent her a series of text messages that exonerated Cumbie. Prior to the trial, Golden turned over a series of text messages that he had been provided by Cervantes that she claimed had come from another man, Eric Primeaux, who she said had confessed to using Cumbie's cell phone to engage in the activity that led to Cumbie's prosecution.

Cervantes pleaded guilty to the charge last August, admitting that she had tried to frame Primeaux for Cumbie's actions.

In addition to the 16 month prison sentence -- the maximum under U.S. sentencing guidelines -- Moody ordered Cervantes to serve two years on supervised release after she leaves prison.

Print Headline: Man asks judge for his case file


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