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Pickens v. Kelley

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

March 23, 2015

MICHAEL G. PICKENS, Petitioner,
v.
WENDY KELLEY, Director of the Arkansas Department of Correction, Respondent.

PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS

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:

DISPOSITION

Before the Court is the application for writ of habeas corpus pursuant to 28 U.S.C. ยง2254 of Michael G. Pickens, who is currently in the custody of the Arkansas Department of Correction (ADC). In 2001 Mr. Pickens was convicted of rape by a Hot Spring County jury, and sentenced to life imprisonment. He unsuccessfully appealed his conviction. Pickens v. State, 347 Ark. 904 (2002). On May 15, 2002, Mr. Pickens sought postconviction relief. By Order dated February 21, 2003, the trial court denied relief. The Arkansas Supreme Court affirmed the trial court in an opinion on November 3, 2005. On January 29, 2015, Mr. Pickens filed his habeas corpus petition with this Court. In his petition, he contends that Martinez v. Ryan, 132 S.Ct. 1309 (2012)operates to excuse his failure to file a timely federal habeas corpus. Secondly, he contends that he received ineffective assistance of counsel.

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 limitation on petitions for writ of habeas corpus:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 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 ...

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