United States District Court, E.D. Arkansas, Pine Bluff Division
KRISTINE G. BAKER, District Judge.
The Court has received Proposed Findings and Recommendations from United States Magistrate Judge Jerome T. Kearney (Dkt. No. 8). Petitioner Alvin Robinson and respondent Ray Hobbs have objected (Dkt. Nos. 10, 11, 12). After review of the Proposed Findings and Recommendations, the parties' objections, and a de novo review of the record, the Court adopts in part and rejects in part the Proposed Findings and Recommendations.
On May 14, 2008, Mr. Robinson was found guilty of possession of a firearm by a felon and was sentenced as a habitual offender to term of imprisonment of 36 years. The jury also found that Mr. Robinson employed a firearm as manner of committing firearm possession by a felon, and his sentence was enhanced by 15 years. Mr. Robinson's only argument on direct appeal was that the enhancement to his sentence violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. On October 7, 2009, the Arkansas Court of Appeals affirmed Mr. Robinson's conviction and sentence, finding that he had not preserved this claim for review. Robinson v. State, 2009 Ark.App. 647.
On July 3, 2012, Mr. Robinson filed in the Arkansas Supreme Court a petition for writ of certiorari and petition for writ of error coram nobis claiming that he received ineffective assistance of counsel at trial because his trial counsel failed to preserve his double jeopardy objection. Mr. Robinson had not filed with the trial court a Rule 37 petition for a new trial based on ineffective assistance of counsel. In his July 3, 2012, petition with the Arkansas Supreme Court, Mr. Robinson stated that he wanted the Court "to consider a belated Rule 37 petition on the question presented and for interpretation of new federal precedent found in Martinez v. Ryan [, 132 S.Ct. 1309 (2012), ] and clarification of application to Arkansas law and procedures." (Dkt. No. 7-5, at 1). On September 27, 2012, the Arkansas Supreme Court denied Mr. Robinson's petitions, holding that his claims failed to state grounds for a writ of certiorari or a writ of error coram nobis. Robinson v. State, 2012 Ark. 356.
On July 12, 2013, Mr. Robinson filed his 28 U.S.C. § 2254 habeas petition in this Court, arguing that his trial counsel was ineffective for failing to preserve his double jeopardy claim for direct appeal. Mr. Robinson further asserted that Martinez and Trevino v. Thaler, 133 S.Ct. 1911 (2013), present grounds for this Court to reach the merits of his claims despite his admitted failure to file a Rule 37 petition with the Arkansas trial court and the admitted untimeliness of his habeas petition in this Court. Mr. Hobbs responded to the petition and argued that Mr. Robinson's claims are time-barred and procedurally defaulted, although Mr. Hobbs described the issue of procedural default as moot in view of the untimeliness of Mr. Robinson's petition.
Judge Kearney, in the Proposed Findings and Recommendations received by this Court, determined that cause exists for excusing Mr. Robinson's procedural default based on Martinez and Trevino and that prejudice exists to excuse the procedural default, but he ultimately recommends dismissing the petition as time-barred. Mr. Hobbs objects to the Proposed Findings and Recommendations as to the determination of procedural default. Mr. Robinson objects to the Proposed Findings and Recommendations as to the finding that there is no basis for excusing the untimeliness of his claims.
The Court agrees with and adopts the conclusion reached by Judge Kearney in the Proposed Findings and Recommendations in that Mr. Robinson's habeas petition is time-barred. Mr. Robinson's habeas action is governed by a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). That limitation period runs 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 was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Only subdivision (d)(1)(A) is applicable to this case. Under that subdivision, the limitations period began to run on October 27, 2009, and expired on October 27, 2010. There are no claims or arguments here to invoke (d)(1)(B) or (d)(1)(C), and, as to (d)(1)(D), that subdivision does not aid Mr. Robinson here because the factual predicate of Mr. Robinson's ineffective assistance of trial counsel claim was evident after the Arkansas Court of Appeals issued its opinion on October 7, 2009, ruling that Mr. Robinson's trial counsel did not preserve the double jeopardy objection. Mr. Robinson's habeas petition is time-barred.
Further, to the extent that Mr. Robinson may be arguing that Martinez should be applied to provide for equitable tolling of the statute of limitations, the Court disagrees. See, e.g., Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir. 2014) (holding that "the reasoning of the Martinez rule does not apply to AEDPA's limitations period in § 2254 cases or any potential tolling of that period"); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) ("Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way."). The Court also notes that, although the limitations period is tolled while a properly filed application for State post-conviction relief or other collateral review is pending, 28 U.S.C. § 2244(d)(2), Mr. Robinson never filed to request further relief ...