United States District Court, E.D. Arkansas, Pine Bluff Division
DAVID E. LEWIS, Petitioner,
LARRY NORRIS, Interim Director,  Arkansas Department of Correction, Respondent.
KRISTINE G. BAKER, Magistrate Judge.
An Arkansas County, Arkansas jury found Petitioner David E. Lewis guilty of one count of possession of marijuana with intent to deliver and one count of possession of cocaine with intent to deliver. With an enhancement, Mr. Lewis was sentenced to an aggregate term of 100 years in the Arkansas Department of Correction ("ADC"). The Court entered its judgment and commitment order on January 15, 2009. (Docket entry #9-2)
Mr. Lewis appealed to the Arkansas Court of Appeals, claiming the evidence was insufficient to support the conviction. On September 29, 2010, the Court of Appeals affirmed the conviction. Lewis v. State, 2010 Ark.App. 641 at *5.
On November 29, 2010, Mr. Lewis filed a petition for post-conviction relief with the trial court under Arkansas Rule of Criminal Procedure 37.1 alleging that: (1) his trial counsel was ineffective for not investigating the underlying basis for his arrest and for failing to move to suppress evidence discovered pursuant to that arrest; (2) the trial court erred in denying his pro se motions for a continuance and for appointment of new counsel; (3) he was entitled to more jail-time credit than he was given in the judgment-and-commitment order; and (4) his sentence was illegal. Lewis v. State, 2013 Ark. 105, 2 (2013). A hearing was held on the petition, and the circuit court entered a written order denying his first, second, and fourth claims, but the court left open the third claim pending the its determination of exactly how much jail-time credit appellant was due. (#9-6)
Mr. Lewis appealed to the Arkansas Supreme Court. On March 7, 2013, while Mr. Lewis's motion for extension of time and for access to the record was pending, the Court dismissed the appeal. Lewis, 2013 Ark. at 8. The Court determined that Mr. Lewis could not prevail even if he was allowed to proceed. Id.
Mr. Lewis filed this federal habeas petition under 28 U.S.C. § 2254 on October 7, 2014. (Docket entry #1) In this petition, Mr. Lewis claims that his trial counsel was ineffective: (1) for failing to properly investigate the validity of the arrest warrant and for withdrawing the motion to suppress evidence discovered pursuant to the arrest; and (2) by breaching his duty of loyalty by failing to communicate with him.
Interim ADC Director Larry Norris has responded to the petition (#9) arguing that Mr. Lewis's claims are barred by the applicable statute of limitations. The parties have consented to this Court's jurisdiction. (Docket entry #13) For the reasons discussed below, Mr. Lewis's petition is denied and dismissed.
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 federal 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 judgment 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).
In this case, Mr. Lewis appealed his conviction to the Arkansas Court of Appeals, which affirmed on September 29, 2010. (#9-4) He did not seek discretionary review from the Arkansas Supreme Court. See Ark. Sup Ct. R. 2-4(a); see also Parmley v. Norris, 586 F.3d 1066, 1076 (2010)(holding that the Arkansas Court of Appeals is not a state court of last resort to permit review of its decision by the United States Supreme Court). Accordingly, Mr. Lewis's judgment became final on October 18, 2010, when the time for seeking review in the Arkansas Supreme Court expired. Ark. Sup Ct. R. 2-3(a) and 2-4(a); see also Gonzlez v. Thaler, ___U.S. ___, 132 S.Ct. 641, 653-54 (2012).
Mr. Lewis did not file this habeas petition until October 7, 2014. Accordingly, his claims are barred by the one-year statute of limitation unless the statute of limitations can be tolled.
A. Statutory Tolling
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."
The parties agree that Mr. Lewis filed a timely post-conviction petition and appeal from the trial court's denial of the petition. The limitations period ran, however, for 41 days (until November 29, 2010), when Mr. Lewis filed his petition for post-conviction relief under Arkansas Rule of Criminal Procedure 37.1. (#9-5) The statute of limitations was tolled until the Arkansas Supreme Court dismissed Mr. Lewis's appeal on March 7, 2013. 28 U.S.C. § 2244(d)(2). The statute of limitations began to run again on March 8, 2013, and expired on January 25, 2014. King v. Hobbs, 666 F.3d 1132, 1136 (8th Cir. 2012)(limitations period tolled during the pendency of ...