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Wheat v. Kelley

United States District Court, E.D. Arkansas, Western Division

August 18, 2015

JASON WHEAT, Petitioner,
v.
WENDY KELLEY, Director, Arkansas Department of Correction, Respondent.

RECOMMENDED DISPOSITION

BETH DEERE, Magistrate Judge.

I. Procedure for Filing Objections

The following Recommended Disposition ("Recommendation") has been sent to United States District Court Judge J. Leon Holmes. Either 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 Holmes can adopt this Recommendation without independently reviewing the record.

II. Background

On August 7, 2003, petitioner Jason Wheat entered guilty pleas in Faulkner County Circuit Court to domestic battery, terroristic threatening, residential burglary, intimidating a witness, two counts of sexual abuse, two counts of kidnapping, and aggravated assault. (Docket entry #9-1) The sentencing court imposed an aggregate 50-year sentence with two additional, consecutive 10-year suspended sentences. (#9-1)

On November 19, 2003, Mr. Wheat filed a Rule 37 petition with the trial court. (#2, pp. 104-110) The trial court dismissed the petition as untimely on March 16, 2004. (#2, p. 96) Mr. Wheat did not appeal the dismissal.

According to Mr. Wheat, he filed a number of additional postconviction petitions with the State courts. (#2) On March 2, 2005, Mr. Wheat filed a motion for belated appeal. On April 28, 2005, he filed a petition to set aside an illegal sentence. Mr. Wheat filed a motion to vacate an invalid plea agreement on May 16, 2008. He then filed a motion to withdraw and strike class Y felony conviction on January 2, 2010. Mr. Wheat filed a state habeas petition sometime in October, 2012. He filed another motion for belated appeal on October 12, 2013. Mr. Wheat filed a motion for a sentence change on February 5, 2015. He also filed a pleading asserting a violation of state criminal procedure on March 2, 2015, and two motions to dismiss sometime in March, 2015. (#2, pp. 5-6) The state courts denied all of the petitions and motions, with the exception of the 2015 pleadings, which were apparently still pending when Mr. Wheat filed this action. (#2, pp. 5-6; #9, p. 2)

On March 30, 2015, Mr. Wheat filed the pending federal petition for writ of habeas corpus. (#2) Respondent, Director Wendy Kelley, filed a response arguing that the petition is time-barred. (#9) Mr. Wheat then filed a supplement to his petition (#11), and Director Kelley responded. (#12) For the reasons explained below, the Court will recommend that Judge Holmes DISMISS Mr. Wheat's petition, with prejudice.

III. Discussion

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year limitations period for a state prisoner to file a federal habeas corpus petition 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 generally 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 like this, where the petitioner entered a guilty plea and did not file a direct 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 Faulkner County Circuit Court entered Mr. Wheat's judgment and commitment order on August 7, 2003. (#9-1) Because Mr. Wheat did not file a direct appeal, the one-year limitations period began to run no later than September 9, 2003, the day after his time to file a direct appeal expired. Mr. Jones waited to file the pending petition until March 30, 2015 - more than ten years after his conviction became final. ...


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