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Nelson v. Kelley

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

May 15, 2015

BRIAN NELSON, Petitioner,
v.
WENDY KELLEY, Director, Arkansas Department of Correction, Respondent.

RECOMMENDED DISPOSITION

BETH DEERE, Magistrate Judge.

I. Procedure for Filing Objections

This Recommended Disposition ("Recommendation") has been sent to Chief United States District Judge Brian S. Miller. Any party may file written objections within fourteen (14) days of the date of the Recommendation. If objections are filed, they must be specific and must include the factual or legal basis for the objection.

If no objections are filed, Chief Judge Miller can adopt this Recommendation without independently reviewing the record. By not objecting, you may also waive any right to appeal questions of fact.

II. Background

On September 10, 2010, a Grant County, Arkansas jury found Petitioner Brian Nelson guilty of four counts of sexual assault of a minor and sentenced him to fifty-six years' imprisonment in the ADC. Nelson v. State, 2011 Ark. 429, 1. Mr. Nelson appealed to the Arkansas Supreme Court, arguing that the trial court erred by denying his motion for directed verdict, by denying his motion to declare the Arkansas Rape Shield Law unconstitutional, by allowing his statement to police into evidence, and by not allowing a witness to testify as to the minor victim's reputation for truthfulness. Id. The Supreme Court disagreed and affirmed the conviction. Id. at 10.

Mr. Nelson filed a timely petition for post-conviction relief under Arkansas Rule of Criminal Procedure 37.1 with the trial court on December 15, 2011. (#1 at pp. 65-74, 94-96) The trial court denied the petition on December 30, 2011, and Mr. Nelson did not appeal. (#1 at p. 100) Nelson v. State, 2013 Ark. 316, 1 (2013).

Mr. Nelson moved to file a belated appeal with the Arkansas Supreme Court on October 25, 2012. Nelson v. State, 2013 Ark. 316, 1 (2013). On September 5, 2013, because there was nothing in the record indicating that Mr. Nelson was properly notified of the trial court's order of dismissal of his Rule 37 petition, the Arkansas Supreme Court granted his motion to file a belated appeal. Id.

Mr. Nelson moved for an extension of time to file his brief with the Arkansas Supreme Court. Nelson v. State, 2014 Ark. 28, 1. On January 23, 2014, the Court found that Mr. Nelson could not prevail, dismissed the appeal, and denied his motion for an extension of time to file the brief as moot. Id. at 2-9.

Mr. Nelson mailed a petition for reduction of sentence to the Grant County Circuit Court on March 20, 2014. (#1 at pp. 118-127) The circuit court dismissed the petition on March 28, 2014. (Id. at p. 131)

In this federal habeas petition, filed December 24, 2014, Mr. Nelson complains that the trial court erred by denying his motion for directed verdict, denying his motion to declare the rape shield law unconstitutional, allowing his statement to police to be admitted, and prohibiting a witness from testifying about the victim's reputation for truthfulness. (#1 at pp. 6-13) He also complains that his trial counsel was ineffective for failing to file a motion to have the trial judge recuse, for failing to file a proper motion to suppress his statement, and for failing to insure that Agent Shepard was at the suppression hearing and trial. (Id. at pp. 13-19) Mr. Nelson further complains that his trial counsel had a conflict of interest because she had a son the same age as the victim in the case. In addition, he argues that it was unconstitutional for the judge to instruct the jury regarding parole eligibility. (Id. at pp. 19-32) In his April 18, 2015 amended petition, Mr. Nelson claims that one of his trial lawyers was mentally unstable when she represented him. (#15)

Director Wendy Kelley has responded to the petition. (#16) She maintains that Mr. Nelson's claims are either barred by the statute of limitations, are procedurally defaulted, or lack merit. For the reasons discussed below, the Court recommends that Mr. Nelson's petition be denied and dismissed.

III. The Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), establishes a one-year limitations period for state prisoners to commence habeas corpus proceedings under 28 U.S.C. § 2254. The statute provides that the limitation period begins to run from, "the date on which the judgement became final by the conclusion of direct ...


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