Petitioner Timothy Burchfield was convicted by a jury of manufacturing methamphetamine, possession of drug paraphernalia with intent to manufacture methamphetamine, and possession of methamphetamine. He was sentenced to a term of twenty-five years in the Arkansas Department of Correction. His trial counsel filed a notice of appeal of his conviction with the Arkansas Supreme Court. Stating there was no merit to the appeal, Petitioner's attorney filed a brief and motion to be relieved as counsel under Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R. 4-3(j). Burchfield v. State, No. CARC02-1191, 2004 WL 304328, at *1 (Ark. App. Feb. 18, 2004). Petitioner then filed a pro se brief arguing insufficient evidence of manufacturing methamphetamine, and double jeopardy based on convictions for both manufacturing and possession of methamphetamine. The Arkansas Court of Appeals found both points raised by Petitioner lacked merit and affirmed his conviction. Id. at *2.
On March 3, 2004, Petitioner filed a petition for post-conviction relief with the trial court pursuant to Ark. R. Crim. P. 37.1 claiming: (1) ineffective assistance of counsel at trial; (2) trial court error in admitting evidence that was seized in violation of the Fourth Amendment; (3) prosecutorial misconduct; (4) violation of the privilege against self-incrimination; (5) mental incompetence; (6) excessive sentencing; (7) pre-text; (8) double jeopardy; (9) trial court error in admitting evidence pursuant to an unlawful arrest; and (10) ineffective assistance of counsel on appeal. On June 23, 2004, the trial court held a hearing on the Rule 37 petition, and on September 30, 2004 entered an order dismissing the petition for lack of jurisdiction. The trial court ruled that because Petitioner had filed his petition on March 3, 2004, six days before the Court of Appeals issued its mandate affirming the conviction, it lacked jurisdiction to hear the petition. Petitioner appealed the trial court's order, and on May 12, 2005, the Arkansas Supreme Court dismissed the appeal, ruling that the trial court never had jurisdiction. Burchfield v. State, No. 05-325, 2005 WL 1120256 at * 1 (May 12, 2005).
Soon after the Arkansas Supreme Court dismissed his appeal, Petitioner filed an application for executive clemency with the Governor of Arkansas. By letter dated December 12, 2005, then-Governor Mike Huckabee denied Petitioner's application. On December 16, 2005, Petitioner filed this habeas petition claiming: (1) his conviction was obtained by use of evidence obtained pursuant to an unlawful arrest; (2) he was denied effective assistance of counsel; (3) the Arkansas Supreme Court erred in denying his appeal of the trial court's ruling on his post-conviction Rule 37 petition; and (4) excessive sentencing.
Respondent asserts that Petitioner's claims are barred by the statute of limitations, or alternatively that they are procedurally barred because he failed to present them properly to the state court. For the reasons set forth below, Petitioner's claims are barred by the statute of limitations.
II. Analysis of Petitioner's Claims
A. Petitioner's Claims are Barred by the Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), established a one year statute of limitations during which a state prisoner must commence a habeas corpus proceeding under 28 U.S.C. § 2254. The statute provides the limitation period shall run from, "(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time limit for seeking such review." Under United States Supreme Court Rule 13, a petition for writ of certiorari is timely if filed within ninety days after the entry of the judgment in question. When a petitioner does not file a petition within the prescribed period, his convictions become final. Nichols v. Bowersox, 172 F.3d 1068 (8th Cir. 1999)(state court judgment becomes final under 2244(d)(1)(A) upon the expiration of the time for filing a petition for writ of certiorari).
The Arkansas Court of Appeal affirmed Petitioner's conviction on February 18, 2004. Respondent argues that because Petitioner did not petition the Supreme Court of Arkansas for review of the decision, the Petitioner never received a ruling from the state's highest court and was not eligible to petition for writ of certiorari to the United States Supreme Court. Thus, Respondent argues, the statute of limitations began running on February 18, 2004, when the Court of Appeals affirmed.
In this case, it is not necessary to decide whether Petitioner's choice not to petition the Arkansas Supreme Court for review deprived him of the ninety-day period for filing a petition for certiorari with the United States Supreme Court because, even if the Court allows Petitioner the ninety day period, Petitioner's habeas petition still does not fall within the one-year statute of limitations period. Allowing Petitioner the ninety-day period, the statute of limitations on Petitioner's claim would have expired on May 18, 2005, several months before his habeas petition was filed on December 16, 2005.
B. Petitioner's Filings Did Not Toll the Statute of Limitations
Petitioner claims that the statute of limitations should be tolled during the period between the filing of his Rule 37 petition and the Arkansas Supreme Court's dismissal of the appeal of the trial court's order, and then again during the time his application for executive clemency was pending. The statute does not support either argument.
1. Petitioner's Rule 37 Petition
Title 28 U.S.C. § 2244(d)(2), provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section." However, a petition for Rule 37 post-conviction relief that is not filed within 60 days of the mandate being issued is not a "properly filed application for state post-conviction or other collateral review" and 28 U.S.C. § 2244(d)(2)'s tolling provision does not apply. Pace v. DiGuglielmo, 544 U.S. 408, 410-417 (2005); Walker v. Norris, 436 F.3d 1026, 1030 (8th Cir. 2006); Lewis v. Norris, 454 F.3d 778, 781 (8th Cir. 2006). ...