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Anderson v. Kelley

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

April 7, 2015

MICHAEL L. ANDERSON ADC #130293, Petitioner,
v.
WENDY KELLEY, [1] Director Arkansas Department of Correction, Respondent.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

J. THOMAS RAY, Magistrate Judge.

The following Proposed Findings and Recommended Disposition ("Recommendation") have been sent to United States District Judge J. Leon Holmes. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the entry of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

Mail any objections to:

I. Background

Pending before the Court is a 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus filed by Petitioner, Michael Anderson ("Anderson"). Doc. 2. Before addressing Anderson's habeas claims, the Court will review the procedural history of the case in state court.

In September 2007, an Ashley County jury convicted Anderson of five counts of committing a terroristic act and one count of being a felon in possession of a firearm.[2] He received an aggregate sentence of 1320 months. Doc. 9-1.

Anderson appealed, arguing that the trial court erred: (1) in denying his motion for directed verdict challenging the sufficiency of the evidence at trial; (2) in summoning a second panel of prospective jurors without informing Anderson; and (3) in denying his motion for new trial based on a possible relationship between a seated juror and one of the victims. On February 24, 2010, the Arkansas Court of Appeals affirmed Anderson's convictions. Anderson v. State, 2010 Ark.App. 177.

Following the Arkansas Court of Appeals decision, Anderson had eighteen calendar days, until March 14, 2010, to file a petition for review with the Arkansas Supreme Court. Ark. Sup.Ct. R. 2-4(a) (2010). Because March 14 fell on a Sunday, the deadline became Monday, March 15, 2010. See Ark. R. App. P.-Crim. 17. Anderson did not file a petition for review with the Arkansas Supreme Court.

On May 10, 2010, Anderson filed a timely Rule 37 petition for post-conviction relief in the trial court, raising various ineffective assistance of counsel claims.[3] See Doc. 2, at 3-5. On July 25, 2011, the trial court entered an order denying the Rule 37 petition. Doc. 2, Ex. 9.

Anderson appealed. On September 19, 2013, the Arkansas Supreme Court affirmed the trial court's denial of Anderson's Rule 37 petition. Anderson v. State, 2013 Ark. 332.

On September 8, 2014, Anderson initiated this pro se habeas action. He argues that his trial lawyer was ineffective for: (a) failing to challenge the sufficiency of the criminal information; (2) failing to object to an erroneous jury instruction; and (3) failing to make an adequate motion for directed verdict. Doc. 2, at 17-28. Respondent argues that Anderson's habeas claims: (1) are time-barred; and (2) were reasonably adjudicated by the state courts. Doc. 9. Anderson filed a Reply. Doc. 11. Thus, the issues are joined and ready for disposition.

For the reasons discussed below, the Court recommends that the Petition be denied as untimely.[4]

II. Discussion

A state prisoner seeking to challenge his state court conviction in federal court must file a petition for habeas relief within one year after the state judgment of conviction becomes final by conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). For a state prisoner who does not seek review in a state's highest court, the judgment becomes "final" on ...


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