United States District Court, W.D. Arkansas, Hot Springs Division
JOSEPH S. RITTER, Petitioner,
RAY HOBBS, Director Arkansas Department of Correction, Respondent.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
BARRY A. BRYANT, Magistrate Judge.
Petitioner, JOSEPH S. RITTER (hereinafter "Ritter"), an inmate confined in the Arkansas Department of Corrections, Ouachita River Unit, Malvern, Arkansas, filed this Petition for Writ of a Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. The Petition was referred for findings of fact, conclusions of law and recommendations for the disposition of the case. The Respondent has filed a response as ordered. ECF No. 6. For the reasons set forth below, the Petition should be DENIED.
1. Procedural Background:
Ritter entered a plea of guilty in Searcy County Circuit Court on April 1, 1997, to one count each of rape and kidnaping. He was sentenced to a total of 342 months imprisonment. Additionally, the state trial court noted on its judgment and commitment order the sentences were imposed under Ark. Code Ann. § 16-93-611 (Supp. 1995). Because he entered a plea of guilty, Ritter had no right to a direct appeal and he did not seek such appeal. See ARK. R. CRIM. P. 37.1 He did subsequently file several post conviction motions in state court. I summarize these here:
A. 2005 Petition for Declaratory Judgment: On January 11, 2005, Ritter filed a petition for declaratory judgment in the Circuit Court of Pulaski County, Arkansas. ECF No. 6-3. He claimed in this petition he was serving 70% of his sentence under Ark. Code Ann. § 16-93-611 without receiving meritorious good time. Section 16-93-611 requires inmates convicted of certain crimes to serve at least 70% of the sentence imposed prior to being eligible for parole. He claimed § 16-93-611 was being oppressively applied to his sentence and thereby depriving him of the incentive to earn good time credits. The Circuit Court of Pulaski County denied his petition. ECF No. 6-5. Ritter did not appeal.
B. 2011 Petition for Declaratory Judgment: On October 26, 2011, Ritter filed a second petition for declartory judgment this time in the Circuit Court of Jefferson County, Arkansas. In this petition he the Arkansas Department of Corrections ("ADC") was improperly applying the 70% rule to prevent his transfer to the Arkansas Department of Community Corrections ("DCC"). The Circuit Court of Jefferson County denied his petition. ECF No. 6-8. Ritter appealed this order to the Arkansas Supreme Court. The Arkansas Supreme Court upheld the decision of the state trial court, holding:
We have recognized that this version of section 16-93-611 does not allow for transfer to community-punishment placement until a person who has been found guilty of, or who pleads guilty or nolo contendere to, designated crimes has served seventy percent of his sentence.
Ritter v. Hobbs, 2014 Ark. 68, 2 (2014)(citations omitted).
2. Instant Petition:
Ritter filed the instant Petition on March 27, 2014. ECF No. 1. In this Petition, he again claims the ADC is wrongfully calculating his the date upon which he can be transferred to the DCC. ECF No. 1, p. 1-2. Ritter specifically states, in paragraph 8 of his petition, he does not challenge § 16-93-611, recognizing it determines his parole eligibility, but he disputes the ADCs interpretation of that statute for purposes of his desired transfer to the DCC. Notably, Ritter does not challenge his conviction or sentence, rather he challenges the location where the State is requiring him to serve that sentence. He also asserts his petition is timely despite being filed many years after his original conviction.
The Respondent asserts the instant Petition is untimely. ECF No. 6. The Respondent also asserts the claims made in the petition are without merit. Id.
A. Statute of Limitations: On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA") was signed into law. The law made several changes to the federal habeas corpus statutes, including the addition of a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The AEDPA provides that the one-year limitations period shall run from the latest of four possible situations. Section 2244(d)(1)(A) specifies the limitations period shall run from the date a judgment becomes final by the conclusion of direct review or the expiration of the time for seeking such review. Section 2244(d)(1)(B) specifies the limitations period shall run from the date an impediment to filing created by the State is removed. Section 2244(d)(1)(C) specifies the limitations period shall run from the date in which a constitutional right has been initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review. Section 2244(d)(1)(D) states the limitation period shall run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."
Section 2244(d)(2) also provides 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. The United States Court of Appeals for the Eighth Circuit has also held "the one-year period is equitably tolled when extraordinary circumstances' have made it impossible for ...