United States District Court, E.D. Arkansas, Pine Bluff Division
June 27, 2014
RICKEY HICE ADC #149969 Petitioner
RAY HOBBS, Director, Arkansas Department of Correction Respondent
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION INSTRUCTIONS
J. THOMAS RAY, Magistrate Judge.
The following recommended disposition has been sent to United States District Judge J. Leon Holmes. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the United States District Judge, you must, at the same time that you file your written objections, include a "Statement of Necessity" that sets forth the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge.
3. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge.
From this submission, the United States District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Pending before the Court is a 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus filed by Petitioner, Rickey Hice, an inmate in the Arkansas Department of Correction ("ADC"). Docs. #1 & #3. Respondent has filed two Responses, Docs. #9 & #17 , and Petitioner has filed a Reply, Doc. #11 . Thus, the issues are joined and ready for disposition.
Before addressing Petitioner's habeas claims, the Court will review the procedural history of the case.
On April 1, 2011, Petitioner entered a negotiated guilty plea to possessing drug paraphernalia with intent to manufacture methamphetamine, in Sebastian County Circuit Court Case No. CR2011-71. He was sentenced to 168 months of imprisonment, followed by a 72-month suspended imposition of sentence. Doc. #9-2 . His sentence was ordered to be served concurrently with three other sentences from Sebastian County Circuit Court.
Importantly, only Petitioner's sentence in Case No. CR2011-71 was for an offense that required the convicted person to serve 70% of the term of imprisonment, the so-called "70% rule." See Ark. Code Ann. § 16-93-611(a)(1) (2009), repealed and replaced by Ark. Code Ann. § 16-93-618 (2011).
Before his sentencing in Case No. CR2011-71, Petitioner and his attorney executed a Plea Statement that expressly addressed the question of parole: "Neither your attorney nor the court can determine when, or if, you will be paroled. Parole eligibility is determined by statute and is interpreted by the Arkansas Department of Correction."
On March 5, 2012, Petitioner filed a state habeas petition in Sebastian County Circuit Court which was construed as having been filed in all four of his Sebastian County Circuit Court cases. In his habeas petition, his only argument was that he did not learn that he "had to do 70% of [his] time" until he arrived at the ADC on September 21, 2011. Court's Ex. 3.
On March 9, 2012, the trial court entered an order dismissing Petitioner's habeas petition because: (1) he had pleaded guilty to possession of drug paraphernalia with intent to manufacture methamphetamine in Case No. CR2011-71, which "is a 70% offense"; and (2) his claim [challenging the 70% rule] was not "an appropriate basis for a Habeas Corpus petition." Court's Ex. 4. Petitioner did not appeal the trial court's order denying his habeas petition. Court's Ex. 1 .
According to Petitioner, on three occasions in April and May 2012, he attempted to file a state habeas action in Pulaski County Circuit Court. Doc. #3, at 3, 6, 7 . The only evidence provided by Petitioner to support this claim are three letters from the Pulaski County Circuit Clerk ("the Clerk"), which he attached to his § 2254 habeas papers. Doc. #1, at 5-7. In those letters, the Clerk acknowledges only that she has received "paperwork" from Petitioner, which he should "resubmit" so that it could be "properly process[ed]." The letters do not identify the "paperwork" Petitioner sent to the Clerk.
On August 3, 2012, Petitioner initiated this § 2254 habeas action. Doc. #1 . On August 10, 2012, this Court ordered Petitioner to file an Amended Petition correcting several deficiencies in his habeas papers. Doc. #2 .
On August 29, 2012, the Court received Petitioner's Amended Petition, which he submitted on the § 2254 form. Doc. #3 . On September 5, 2012, the Court received Petitioner's properly completed and signed Application to Proceed In Forma Pauperis. Doc. #4 . On September 10, 2012, the Court directed service of Petitioner's § 2254 habeas petition on Respondent. Doc. #5 .
On October 8, 2012, Respondent filed his Response, in which he argued that Petitioner habeas claims were time-barred. Doc. #9 . In Petitioner's Reply, filed on October 19, 2012, he sought to overcome the statute of limitations issue by reasserting his claim that the "first time [I knew] I had to do 70% of my 15 year sentence was on 11/08/2011." He then asserted that he intended to file the unsigned August 3, 2012 habeas petition he submitted to this Court in Pulaski County Circuit Court but it "somehow... got jumped up to" federal court. Doc. #11 . He made no attempt to explain why, after the Court returned the unsigned habeas petition to him, he completed the enclosed § 2254 habeas form and filed it, along with an IFP application, in federal court, not state court. He also did not request this Court to dismiss his § 2254 habeas action so that he could refile his petition as a state habeas action in Pulaski County Circuit Court. On January 7 and 24, 2013, Petitioner filed two papers requesting this Court to conduct a hearing on his § 2254 habeas claim. Docs. #13 & #15 .
Based on this record, it is clear that Petitioner knew he was initiating a federal habeas action, on and after August 3, 2012, which he wanted this Court to hear and decide. Furthermore, the Pulaski County Circuit Court records make it clear that, after Petitioner filed his October 19, 2012 Reply claiming that his unsigned August 3, 2012 habeas petition "somehow... got jumped up to" federal court, he never filed a state habeas petition in Pulaski County Circuit Court .
Liberally construing Petitioner's habeas papers, he alleges that, because he was unaware when the sentence was imposed that it would be subject to the 70% rule, his "sentence" was "invalid, " obtained by fraud, and violated his right to equal protection of the laws. Doc. #3, at 5-9 . According to Petitioner, during his "trial, " he "was told" by unidentified individuals that he would serve "1/2 of 1/2 of the 15 year sentence." However, when he arrived at the ADC, he discovered that he would have to serve 70% of the sentence before becoming eligible for transfer, which were not the terms of his "Plea Agreement." Id . at 5. Petitioner never identifies the specific case in which this sentence was imposed. However, as previously explained, the only offense for which he was convicted and which is covered by the 70% rule is "possession of drug paraphernalia with intent to manufacture methamphetamine" in Case No. CR2011-71.
Finally, Petitioner argues that this Court should reduce his imprisonment term to "what [he] agreed to in court which was 1/2 of 1/2 on a 15 year sentence." Id . at 15. He alleges that he "would not have pleaded guilty" to the charges if he "had known about the 70% time." Doc. #11 . Because his 168-month sentence in Case No. CR2011-71 is for an offense covered by the 70% rule, he has standing to assert such a claim.
For the reasons discussed below, the Court concludes that Petitioner's habeas claims are time-barred and should be dismissed.
A state prisoner seeking to challenge his state court conviction in federal court must file a petition for habeas relief within one year after the state judgment of conviction becomes final by conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).
Petitioner's Judgment and Commitment Order in Case No. CR2011-71 was filed with the Sebastian County Circuit Court on April 7, 2011. Because he entered a guilty plea, Petitioner waived his right to appeal under Arkansas law. Thus, for purposes of § 2244(d)(1)(A), his conviction was "final" on April 7, 2011. From that date, Petitioner had one year, until April 7, 2012, to file this federal habeas action.
Petitioner initiated this action on August 3, 2012, almost four months after the expiration of the one-year statute of limitations.
The federal limitations period is tolled while a " properly filed " application for post-conviction relief is pending in state court. 28 U.S.C. § 2244(d)(2). On March 5, 2012, Petitioner initiated a state habeas action in Sebastian County. However, at the time he filed that action, he was incarcerated at the ADC's Wrightsville Unit in Pulaski County. Because a state habeas petition must be filed in the county where the petitioner is incarcerated, the Sebastian County habeas action was not "properly filed" and had no tolling effect. See Lewis v. Norris , 454 F.3d 778, 780-81 (8th Cir. 2006) (Arkansas state habeas petition filed in the wrong county was not "properly filed" and did not toll the federal statute of limitations; federal habeas courts must determine independently whether state court proceedings are "properly filed, " even if the state courts treat them as such).
In April and May of 2012, Petitioner attempted to file a state habeas action in Pulaski County Circuit Court. However, the Pulaski County Circuit Clerk returned his "paperwork" with instructions that it required changes before it could be filed. According to Pulaski County Circuit Court records, Petitioner never submitted a habeas petition in a form that allowed it to be filed. Thus, the "paperwork" Petitioner submitted to the Pulaski County Circuit Court, in April and May of 2012, did not toll the federal limitations period.
In some circumstances, the one-year limitations period does not begin to run until the date on which "the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). The factual predicate of a claim is determined by the "vital facts" underlying that claim. Earl v. Fabian , 556 F.3d 717, 725 (8th Cir. 2009). The Court has considered whether Petitioner can avail himself of this exception, based on his assertion that the first time he learned he had to serve 70% of his imprisonment term was on November 8, 2011, after he arrived at the ADC to begin serving his sentence.
As previously explained, on April 1, 2011, Petitioner pleaded guilty to possession of drug paraphernalia with intent to manufacture methamphetamine, under Ark. Code Ann. § 5-64-403, and was sentenced to 168 months in the ADC. His Judgment and Commitment Order, which was entered on April 7, 2011, explicitly stated that he was being sentenced under Ark. Code Ann. § 5-64-403, which is one of the offenses that is listed in Ark. Code Ann. § 16-93-611 as being subject to the 70% rule.  When an individual commits a criminal act, he is presumed to know the law prohibiting that act, and the consequences arising from its commission. See Atkins v. Parker , 472 U.S. 115, 130 (1985) ("All citizens are presumptively charged with knowledge of the law.").
Through the exercise of due diligence, Petitioner clearly could have and should have discovered the "vital facts" underlying his claim before he entered his guilty plea and was sentenced on April 1, 2011. Had he done so, he would have known that: (1) the offense to which he was going to plead guilty was subject to the "70% rule"; and (2) the contrary information he allegedly was provided, by unidentified individuals at his plea hearing, was simply not true.
In addition, the Plea Statement, signed by Petitioner and his attorney, expressly stated that "[n]either [his] attorney nor the court can determine when, or if, [he] will be paroled, " and that parole eligibility is determined "by statute" and "interpreted by" the ADC. Court's Ex. 2 . Finally, in the Plea Statement, Petitioner explicitly acknowledged that he had read and understood "everything on this paper." Id. 
Thus, at the time his conviction and sentence became final, Petitioner either knew or was in a position to discover, through "the exercise of due diligence, " all of the facts giving rise to the habeas claim he is now asserting. This means, under § 2244(d)(1)(D), he is not entitled to any delay in the one-year limitations period, which began to run on April 7, 2011.
Finally, because § 2244(d) is a statute of limitations, not a jurisdictional bar, a petitioner may be entitled to equitable tolling if he can show that: (1) he has been "pursuing his rights diligently, " but (2) "some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida , 130 S.Ct. 2549, 2560, 2562 (2010). Petitioner has not argued that he is entitled to any equitable tolling, and the Court can discern no factual basis to support such a claim.
First, it does not appear that Petitioner has pursued his rights diligently. Even accepting his assertion that, on November 8, 2011 - seven months after his sentence was imposed - he first learned that the sentence was subject to the 70% rule,  he delayed four more months before filing a state habeas petition in Sebastian County Circuit Court; did not appeal the denial of state habeas relief; made an unsuccessful attempt to file a state habeas action in Pulaski County Circuit Court; and then waited several more months before initiating this federal habeas action. This simply does not show diligence. See Pace v. DiGuglielmo , 544 U.S. 408, 419 (2005) (petitioner failed to pursue his rights diligently where he waited years before filing a state post-conviction petition, then waited five more months after his post-conviction proceedings became final before seeking federal habeas relief); Nelson v. Norris , 618 F.3d 886, 893 (8th Cir. 2010) (no diligence where petitioner did not file his federal habeas petition until nine months after state supreme court denied rehearing in his post-conviction proceeding); Earl , 556 F.3d at 724 (no equitable tolling where petitioner waited to file his federal petition until eight months after receiving notice that his judgments were final).
Second, there do not appear to be any "extraordinary circumstances" that prevented Petitioner from timely filing this federal habeas action, as required by Holland . The Eighth Circuit has repeatedly held that a petitioner's pro se status, lack of legal knowledge or legal resources, or any confusion about the federal limitations period or state post-conviction law, does not justify equitable tolling. See, e.g., Johnson v. Hobbs , 678 F.3d 607, 611 (8th Cir. 2012); Shoemate v. Norris , 390 F.3d 595, 597-98 (8th Cir. 2004).
Accordingly, all of Petitioner's habeas claims are time-barred.
IT IS THEREFORE RECOMMENDED that this 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus and Amended Petition, Docs. #1 & #3 , be DENIED and this case be DISMISSED, WITH PREJUDICE.
IT IS FURTHER RECOMMENDED THAT a Certificate of Appealability be DENIED. See 28 U.S.C. § 2253(c)(1)-(2); Rule 11(a), Rules Governing § 2254 Cases in United States District Courts; Slack v. McDaniel , 529 U.S. 473, 484 (2000).
Comes now the Court on this 9th day of March 2012, and after being sufficiently advised, finds:
1. That the Defendant was found to have violated his PTR on March 30, 2011, and then plead guilty on April 1, 2011 to the offenses of Delivery of Methamphetamine (2 Counts) and Possession of Drug Paraphernalia with Intent to Manufacture Methamphetamine.
2. That at the time of the plea the Defendant was incarcerated in the Sebastian County Detention Center.
3. That the first the Defendant received 15-year sentence on his PTR, and that he received a 14-year sentence on the underlying cases all to run concurrently.
4. That though the Defendant states he was told that he would do ½ of his time and that would be 3 years. The court also finds that the Defendant's math is incorrect ½ of 15 years would be 7 and ½ years and ½ of 14 years would be 7 years. Ultimately the Defendant is correct in his statement at least as to what ADC has told him about 70%. The Defendant plead to Possession of Drug Paraphernalia with Intent to Manufacture Methamphetamine. This is a 70% offense, which can be reduced to 50% with good time credit. However, none of this is an appropriate basis for a Habeas Corpus petition.
THEREFORE it is ordered and adjudged that the Defendants Habeas Corpus Petition is hereby dismissed for the reasons stated above.