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Calderon v. Sharp

United States District Court, Western District of Arkansas, Fort Smith Division

August 21, 2014

JOSE I. CALDERON Petitioner
v.
SHELIA SHARP, Director Arkansas Dept. of Community Corrections, and DALE OWEN, ADCC Probation Officer Respondents

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

HONORABLE JAMES R. MARSCHEWSKI, CHIEF UNITED STATES MAGISTRATE JUDGE

Before the court is the Petitioner's Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to 28 U.S.C. Section 2254 (ECF No. 1) filed December 13, 2013. The Respondents filed a Response (ECF No. 10) on February 20, 2014. On March 28, 2014 the court entered an order (ECF No. 11) appointing counsel and setting a hearing for August 19, 2014. On July 23, 2014 the Respondents filed a Motion for Summary Judgment (ECF No. 24) which was denied on August 4, 2014. (ECF No. 32). A hearing was conducted on August 19, 2014 at which Petitioner Jose I. Calderon and Rhonda McCauley, his retained attorney, testified.

I. Background

On April 12, 2012, Petitioner pleaded guilty to second-degree sexual assault in Crawford County Circuit Court. He was sentenced to a term of 72 months in the Arkansas Department of Correction (ADC) and a suspended imposition of sentence of 96 months. (ECF No. 10-2). It appears that the Plaintiff's Transfer Eligibility (TE) date was December 20, 2012. (ECF No. 10-1, p. 3). Petitioner did not appeal his conviction or sentence and concedes in his petition that he has not filed any post conviction petitions or any other pleadings in state court. (ECF No. 1, p. 3).

On May 17, 2012 the Department of Homeland Security filed an Immigration Detainer-Notice of Action against the Petitioner with the Washington County Jail where the Petitioner was housed at the time. (ECF No. 25-7). The Petitioner was ultimately transferred to the Arkansas Department of Corrections on June 19, 2012. (See Respondent’s Exhibit 1). The Petitioner’s ADC records show that he was released to U.S. Immigration & Customs Enforcement on October 24, 2013. (Id.). The Petitioner was in the custody and control of ICE at all time since his release from ADC and testified at the Habeas hearing by video conference.

The Plaintiff filed the current Motion under 28 U.S.C. § 2254 on December 2, 2013 claiming that his attorney was ineffective because she 1) failed to use exculpatory evidence, 2) waived jury trial, 3) failed to investigate, 4) failed to challenge the arrest, 5) failed to raise defense that there was no forensic evidence, and 6) failed to advise the Plaintiff about the consequences of deportation.

II. Discussion

A. Limitations:

The Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. 104-132, 110 Stat. 1214 (1996), established a one year statute of limitations for federal habeas corpus petitions brought by state prisoners. 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 retroactively applicable to cases on collateral review; or
(D) 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).

Petitioner pleaded guilty to second-degree sexual assault on April 12, 2012, and judgment was entered April 26, 2012. Under Arkansas law when the Plaintiff entered a plea of guilty he waives his right to appeal. See Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987); A.R.Cr.P. Rule 36.1. The Petitioner had 90 days from the date of entry of Judgment to bring his claims of ineffective assistance under Rule 37 (Ark. R. Crim. P. 37.2(c)). The 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 subsection 28 U.S.C.A. ยง 2244 but the Plaintiff admittedly did not file any Rule 37 claim, thus his judgment became final on April 26, 2012 and he had until April 26, 2013 to file a habeas motion under 2254. Since the Plaintiff did not file his claim ...


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