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Briley v. Norris

June 11, 2007

JOHN BRILEY ADC #121521 PETITIONER
v.
LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION RESPONDENT



The opinion of the court was delivered by: J. Leon Holmes United States District Judge

OPINION

John Briley has filed a petition for writ of habeas corpus in which he seeks to set aside his conviction for possession of marijuana with intent to deliver. Because the petition is barred by the statute of limitations, it will be dismissed with prejudice.

I.

Briley was convicted by a jury in the Circuit Court of Pulaski County, Case No. 99-1375, on August 30, 2001. He was found to be an habitual offender and was sentenced to a term of twenty years imprisonment. His conviction was affirmed on direct appeal on February 12, 2003. Briley v. State, No. CACR 02-324, 2003 WL 294387 (Ark. Ct. App. Feb. 12, 2003). Briley could have filed a petition for rehearing or a petition for review but did not do so. The deadline for either petition was March 3, 2003. See ARK. R. SUP. CT. & CT. APP. 2-3; ARK. R. SUP. CT. & CT. APP. 2-4.

On March 20, 2003, Briley filed a petition in the Circuit Court of Pulaski County pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. The circuit court denied the petition on August 20, 2003. Briley's notice of appeal was filed on October 20, 2003, well after the time had expired for filing a notice of appeal. See ARK. R. APP. P. CRIM. 2(a)(4). Briley moved for a belated appeal because, he alleged, he had mailed the notice of appeal to the clerk of the court on August 27, 2003, but the clerk failed to file it until October 20, 2003. The Supreme Court of Arkansas held that Briley had the burden of proving that he had mailed the notice of appeal and that it had reached the circuit clerk by the date that it was due to be filed, and that he had failed that burden. Briley v. State, No. CR 04-239, 2004 WL 743862, at *1 (Ark. Apr. 8, 2004). Therefore, the court refused to accept his belated appeal. Id. at *2.

On January 31, 2005, Briley filed a petition requesting the Supreme Court of Arkansas to reinvest jurisdiction in the Circuit Court of Pulaski County to consider a petition for writ of error coram nobis. The Supreme Court of Arkansas denied the petition on March 10, 2005. Briley v. State, No. CACR 02-324, 2005 WL 552455 (Ark. Mar. 10, 2005). The supreme court denied Briley's petition for reconsideration on May 12, 2005. Briley v. State, No. CACR 02-324, 2005 WL 1120244 (Ark. May 12, 2005). Briley filed his petition for writ of habeas corpus here on February 3, 2006.

Magistrate Judge Beth M. Deere recommended that the Court dismiss Briley's petition because it is barred by the applicable statute of limitations and because Briley's claims are procedurally defaulted. Briley filed timely objections to the recommended disposition. Briley alleged that his legal files were seized by the Arkansas Department of Correction "to gain an unfair advantage over petitioner in this proceeding." Briley asserted that, but for the seizure of his legal files, he could show that the Arkansas Department of Correction impeded his ability to submit the habeas corpus petition within the one-year period of limitation and that the Arkansas Department of Correction had caused the procedural default by impeding his ability to present his claims in state court.

The Court has made a de novo determination of the proposed findings to which Briley objects and has concluded that Briley's petition is time barred. Therefore, his petition will be dismissed with prejudice.

II.

Twenty-Eight U.S.C. § 2244(d) provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...


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