United States District Court, E.D. Arkansas, Pine Bluff Division
BETH DEERE, Magistrate Judge.
I. Procedure for Filing Objections
The following Recommended Disposition ("Recommendation") has been sent to United States District Court Judge James M. Moody, Jr. Any party may file written objections to this Recommendation.
Objections must be specific and must include the factual or legal basis for the objection. An objection to a factual finding must identify the finding of fact believed to be wrong and describe the evidence that supports that belief.
An original and one copy of objections must be received in the office of the United States District Court Clerk within fourteen (14) days of this Recommendation. A copy will be furnished to the opposing party.
If no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may also waive any right to appeal questions of fact.
Mail your objections and "Statement of Necessity" to:
On January 26, 2012, a Pulaski County, Arkansas, jury found Petitioner James Stewart guilty of rape and second-degree sexual assault. Stewart v. State, 2012 Ark. 444, *1. He was sentenced as a habitual offender to life in prison, an additional 18 years' imprisonment, and a fine. Id. Mr. Stewart appealed to the Arkansas Supreme Court, which affirmed. Id.
Mr. Stewart filed a timely petition for post-conviction relief under Arkansas Rule of Criminal Procedure 37.1. The trial court addressed the merits of Mr. Stewart's claims, but denied his request for relief. (#8-5) Mr. Stewart appealed the trial court's decision denying relief to the Arkansas Supreme Court, but the Court, in a per curiam order, dismissed the appeal, finding that Mr. Stewart's Rule 37 petition had not been properly verified as required by Rule 37.1(c). Stewart v. State, 2014 Ark. 85 at *1. The Court held that the trial court had no jurisdiction to consider the arguments raised in the unverified petition, and that the Arkansas Supreme Court, therefore, lacked jurisdiction to hear the appeal. Id.
Mr. Stewart filed this federal habeas petition under 28 U.S.C. § 2254 on April 21, 2014. (#2) In the petition, Mr. Stewart claims he was denied effective assistance of counsel as set out "exactly" in his Rule 37 petition. (#2) At the Court's direction, Mr. Stewart filed a statement of his claims, to which he attached his Rule 37 petition. In the petition, Mr. Stewart complained that: (1) trial counsel was ineffective for failing to sufficiently argue the motions challenging the competency of each child witness and sufficiency of the evidence; (2) trial counsel was ineffective on direct appeal for citing a case the Supreme Court found to be distinguishable; (3) there was prosecutorial misconduct because the prosecutor brought a case of rape and sexual assault based upon incompetent witnesses and perjury; and (4) he was constructively denied counsel both at trial and on direct appeal. (#4 at pp. 8-10)
Arkansas Department of Correction Director Ray Hobbs responded to the petition (#8), contending that Mr. Stewart's claims are barred by the statute of limitations or, alternatively, were procedurally defaulted. For reasons explained below, the Court recommends that Mr. Stewart's petition (#2) be dismissed with prejudice.
III. The Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), establishes a one-year limitations period for state prisoners to commence habeas corpus proceedings under 28 U.S.C. § 2254. The statute provides that the limitation period begins to run from, "the date on which the judgement became final by the conclusion of direct review or the expiration of the time limit for seeking such review." 28 U.S.C. § 2244(d)(1)(A). If the petitioner does not pursue direct review in the Supreme Court, the judgment becomes final at the expiration of the time to seek review in the Supreme Court- that is, ...