United States District Court, E.D. Arkansas, Pine Bluff Division
BETH DEERE, Magistrate Judge.
I. Procedure for Filing Objections
The following Recommended Disposition ("Recommendation") has been sent to United States District Court Judge Bill Wilson. Mr. Jones - or any party - may file written objections with the Clerk of Court within fourteen (14) days of filing of this Recommendation. Objections must be specific and must include the factual or legal basis for the objection. An objection to a factual finding must identify the finding of fact believed to be wrong and describe the evidence that supports that belief.
By not objecting, any right to appeal questions of fact may be jeopardized. And, if no objections are filed, Judge Wilson can adopt this Recommendation without independently reviewing the record.
On June 9, 2009, Petitioner David Lee Jones entered guilty pleas to one count of robbery and one count of kidnapping. As a result of the convictions, the Pulaski County Circuit Court sentenced Mr. Jones to a 30-year term of imprisonment in the Arkansas Department of Correction. (#2, p. 2; #13-1)
Mr. Jones did not appeal his convictions or sentence. And he did not file any motions or petitions for collateral or postconviction relief. (#2, p. 2)
On February 3, 2015, Mr. Jones filed the pending petition for writ of habeas corpus. (#2) Respondent, Director Wendy Kelley, contends that the petition is time-barred. (#13) The Court gave Mr. Jones an opportunity to respond to the time-bar argument. (#14) Mr. Jones has now filed a response to the Court's order. (#15) For the reasons explained below, the Court will recommend that Judge Wilson DISMISS Mr. Jones's petition, with prejudice.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year limitations period for a state prisoner to commence a habeas corpus proceeding under 28 U.S.C. § 2254. 28 U.S.C. § 2244(d)(1). The limitations period begins to run from, "the date on which the judgement became final by the conclusion of direct review or the expiration of the time limit for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
When a petitioner has used the state appeals process, but has not sought direct review in the United States Supreme Court, the judgment is deemed final at the expiration of the time allowed to seek Supreme Court review - that is, ninety days after the conclusion of the petitioner's direct appeals in the state system. King v. Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012) (citations omitted). In a case such as this, where the petitioner entered a guilty plea and did not file a state appeal, the judgment becomes final thirty days from the entry of the judgment, when the time to file a direct appeal expires. Camacho v. Hobbs, 774 F.3d 931 (8th Cir. 2015).
The Pulaski County Circuit Court entered Mr. Jones's judgment and commitment order on June 16, 2009. (#13-1) Because Mr. Jones did not file a direct appeal, the one-year limitations period began to run no later than July 17, 2009, the day after his time to file a direct appeal expired. Mr. Jones waited to file the pending petition until February 3, 2015 - more than five years after his conviction became final. Thus, his claims are barred by the one-year statute of limitations unless the limitations period can be tolled.
A. Statutory Tolling
The time during which a properly filed application for State post-conviction or other collateral review is pending does not count toward the limitations period. 28 U.S.C. § 2244(d)(2). Mr. Jones, however, never filed any post-conviction petitions in State court. (#2, p. 2) Thus, ...