United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS
H. DAVID YOUNG, Magistrate Judge.
The following recommended disposition has been sent to United States District Court Judge Billy Roy Wilson. 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 (14) 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 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 hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge 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 hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Before the Court is the application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 of
James Edward Smith, who is currently in the custody of the Arkansas Department of Correction (ADC). In 1994, Mr. Smith was convicted of rape, kidnapping, and breaking and entering, and sentenced to 40 years' imprisonment. He unsuccessfully appealed his convictions, contending there was insufficient evidence to support his conviction for kidnapping, and that his sentence violated the constitutional provisions against ex post facto laws. Smith v. State, 318 Ark. 142 (1994). About four years later, Mr. Smith sought postconviction relief, filing a petition to correct an illegal sentence. The trial court denied relief, and Mr. Smith appealed. The Supreme Court of Arkansas denied relief, noting that Mr. Smith's claim, a allegation of a violation of the prohibition against the application of ex post facto laws, should have been brought pursuant to a Rule 37 petition. Since a Rule 37 petition should have been filed within sixty days after the mandate on direct appeal, the Supreme Court of Arkansas found "a circuit court cannot grant relief on an untimely petition" and denied the appeal. Docket entry no. 10-4, Smith v. State, 2002 WL 160303 (Jan. 31, 2002). In 2012, Mr. Smith filed another petition to correct an illegal sentence, alleging the sentence was defective because he was charged by information rather than by grand jury indictment. The trial court denied relief and the Arkansas Supreme Court dismissed the appeal, finding that "the allegation that the charging instrument was invalid in appellant's case was without merit, and he was entitled to no relief under" Arkansas law. Docket entry no. 10-5, Smith v. State, 2012 Ark. 311. In October of 2012 Mr. Smith sought state court habeas corpus relief in the Circuit Court of Jefferson County alleging, among other things, that it was error to allow the prosecuting attorney to charge him rather than being charged by a grand jury. The Jefferson County Circuit Court dismissed the petition, and the Arkansas Supreme Court affirmed the trial court, stating "[b]ecause the claims advanced by appellant in the petition for writ of habeas corpus did not call into question the jurisdiction of the trial court or demonstrate the facial invalidity of the judgment, they were not cognizable in a habeas-corpus petition and could not have supported issuance of the writ. Docket entry no. 10-7, page 3, Smith v. Hobbs, 2014 Ark. 314. Mr. Smith sought a writ of certiorari in the United States Supreme Court, without success. Smith v. Hobbs, 135 S.Ct. 721 (Dec. 1, 2014).
On January 13, 2015, Mr. Smith filed his petition for federal habeas corpus relief, alleging: (1) he was charged by felony information and not by grand jury indictment, and (2) Amendment 21, § 1 to the Arkansas Constitution is void to the extent that it conflicts with Article II, § 8 of the Arkansas Constitution. Respondent urges the petition must be dismissed as untimely.
The respondent contends that the statute of limitations bars consideration of these claims. Section 101 of 28 U.S.C. 2244 (as amended) imposes a one year period of ...