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Harris v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

January 29, 2015

PAUL HARRIS, ADC #154185, Petitioner,
WENDY KELLEY, Director, Arkansas Department of Correction[1], Respondent.


JOE J. VOLPE, 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 Court Clerk no later than fourteen 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 a 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 new hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.

2. Why the evidence to be proffered at the new hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.

3. The details of any testimony desired to be introduced at the new hearing in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing.

From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and "Statement of Necessity" to:



On January 22, 2013, Petitioner, Paul Harris, pleaded guilty to rape in Little River County Circuit Court and was sentenced to 180 months imprisonment. (Doc. No. 2.) The circuit court entered a sentencing order the next day. (Doc. No. 7-1.) The conviction arises from Mr. Harris, at age eighteen, engaging in sexual intercourse with a minor under the age of fourteen. (Doc. No. 16-1 at 7-8.)

Mr. Harris failed to check the box indicating he had filed for postconviction relief in his current habeas Petition. However, he had filed in Little River Circuit Court a petition for writ of error coram nobis on October 23, 2013, and a state petition for writ of habeas corpus on January 16, 2014. (Doc. No. 12.) The circuit court denied his petitions on November 5, 2013, and February 6, 2014, respectively. (Doc. No. 16.)

Mr. Harris filed the instant federal habeas Petition and accompanying brief on June 30, 2014. (Doc. Nos. 2, 3.) He alleges 1) actual innocence; 2) his trial counsel was ineffective; 3) he was denied due process; 4) DNA testing should have been done; 5) he was not given Miranda warnings before making an in-custody statement; and 6) he was mentally incompetent to enter a guilty plea.[2] To support his actual innocence claim, Mr. Harris submitted a September 17, 2012, recantation letter written by the minor victim. (Doc. No. 2.)

Respondent opposes the Petition by arguing it is time barred and the claims made are procedurally defaulted. (Doc. No. 7.) In calculating the limitations period, Respondent stated, "Petitioner did not file a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. Nothing further occurred in petitioner's case until he filed his present ยง 2254 petition...." ( Id. at 1.) But Mr. Harris objected and provided file-marked copies of his petition for writ of error coram nobis and state petition for writ of habeas corpus. (Doc. No 12.)

In light of the new information, the Court ordered the parties to respond regarding the impact of the postconviction filings on the time bar argument and to address the recantation letter as it relates to actual innocence. (Doc. No. 15.) Respondent filed a Supplemental Response on December 29, 2014, arguing that, regardless of the tolling caused by the postconviction petitions, Harris's federal habeas Petition is still time barred. (Doc. No. 17 at 1-3.) Respondent further argues the recantation letter does not support a claim of actual innocence. ( Id. at 3-6.)

The Court has carefully considered the pleadings in this matter and the applicable laws. For the following reasons, the Court ...

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