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Chance v. Kelley

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

September 9, 2015

FRANKLIN L. CHANCE, Petitioner,
v.
WENDY KELLEY, Director, Arkansas Department of Correction, Respondent.

MEMORANDUM OPINION AND ORDER

BETH DEERE, Magistrate Judge.

I. Background

In January, 2004, the State charged petitioner Franklin L. Chance with six counts of rape and six counts of incest. (Docket entry #5-2 at p. 1) On November 16, 2004, midway through his jury trial in the Circuit Court of Lincoln County, Mr. Chance appeared with his counsel in chambers and, after the court conducted a plea colloquy with Mr. Chance, entered a negotiated plea of nolo contendere to all of the counts charged. (#2 at pp. 5, 12; #5-3; #5-4) In a judgment and commitment order filed November 24, 2004, the court sentenced Mr. Chance to 20 years on each count of rape and 10 years on each count of incest and ordered that the sentences be served concurrently. (#5-5)

Mr. Chance did not file a direct appeal or petition under Arkansas Rule of Criminal Procedure 37. On March 12, 2014, he filed a habeas petition with the Circuit Court of Lee County, Arkansas, which was denied. Mr. Chance appealed the denial of his petition to the Arkansas Supreme Court, which affirmed, finding that Mr. Chance had not stated grounds for relief. (#5-6) Chance v. Hobbs, 2014 Ark. 400.

Mr. Chance filed a second habeas petition with the Chicot County Circuit Court on November 14, 2014, raising the same grounds for relief that he had raised in his first petition. (#5-7) The court denied the petition, and the Arkansas Supreme Court affirmed. Chance v. State, 2015 Ark. 154, 3-4.

Mr. Chance filed a petition for writ of habeas corpus with this Court on June 10, 2015, claiming: (1) he did not waive his right to a jury trial when he entered a negotiated plea of nolo contendere; (2) the trial court never had cause or consent to dismiss the jury; (3) he never pleaded nolo contendere to the charges, and the judgment was falsified; and (4) the State has refused to allow him to develop the facts supporting his allegations in state court. (#2)

Director Wendy Kelley has responded to the petition. (#5) She maintains that Mr. Chance's claims are either barred by the statute of limitations or lack merit. For the reasons discussed below, Mr. Chance's petition is denied and dismissed.

II. 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 limitation 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). Under § 2244(d)(2), "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section."

In this case, Mr. Chance entered a plea of nolo contendere on November 16, 2004, and the trial court entered a judgment-and-commitment order that was filed on November 24, 2004. See Bradford v. State, 351 Ark. 394, 401 (2003) (under Arkansas law, criminal judgment is effective when entered of record by filing with circuit court clerk); ARK. SUP. CT. ADMIN. ORDER NO. 2(b)(2) (judgment, decree or order is entered when stamped or otherwise marked with the date and time and the word "filed"). Allowing Mr. Chance thirty days for direct review of his guilty plea, the statute of limitations began to run on December 24, 2004, and expired on Monday, December 26, 2005. See Camacho v. Hobbs, 774 F.3d 931 (8th Cir. 2015) (Arkansas petitioners are granted 30 days to file a notice of appeal for purposes of the AEDPA).

A. Statutory Tolling

Title 28 U.S.C. § 2244(d)(2) provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section."

Mr. Chance had ninety days following the entry of the judgment-and-commitment order to file a petition for relief under Rule 37 of the Arkansas Rules of Criminal Procedure; however, he never pursued a petition for post-conviction relief. Instead, he filed two state habeas petitions more than nine years after his conviction became final. Both petitions were denied because Mr. Chance failed to raise claims that were cognizable in a state habeas petition. (#5-6, #5-7)

Even if Mr. Chance's state habeas petitions had been "properly filed, " the petitions did not toll the statute of limitations under § 2244(d)(2), because both petitions were filed well after the statute of limitations had expired. See Cross-Bey v. Gammon, 322 F.3d 1012, 1014 (8th Cir.2003) (statute of limitations period is not tolled ...


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