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Poe v. Kelley

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

June 14, 2016

COREY POE, Petitioner,
v.
WENDY KELLEY, Director of the Arkansas Department of Correction, Respondent.

          Corey Poe, Plaintiff, Pro Se.

          Wendy Kelley, Defendant, represented by Kristen C. Green, Arkansas Attorney General's Office.

          FINDINGS AND RECOMMENDATION

          PATRICIA S. HARRIS, Magistrate Judge.

         INSTRUCTIONS

         The following proposed Findings and 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 this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         FINDINGS AND RECOMMENDATION

         In April of 2006, petitioner Corey Poe ("Poe") was convicted in an Arkansas state trial court of two counts of sexual assault and sentenced to the custody of respondent Wendy Kelley ("Kelley"). Poe appealed his conviction. The Arkansas Court of Appeals affirmed his conviction in April of 2007. See Poe v. State, ___ Ark. ___, ___ S.W.3d ___, 2007 WL 1083670 (Ark.App. 2007). He filed no other state court challenge to his conviction.

         In February of 2016, Poe commenced the case at bar by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. In the petition, he challenged his April of 2006 conviction.[1] Kelly filed a response and maintained, inter alia, that the petition should be dismissed because it is untimely. Poe filed a reply in which he acknowledged waiting several years to file his petition. He maintained, though, that his delay should be excused for the following three reasons: first, his appellate attorney made a misrepresentation regarding the remedies available to Poe; second, the United States Supreme Court decisions in Trevino v. Thaler, ___ U.S. ___, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), and Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), made a change in the law and now warrant the consideration of his petition; and third, Poe is actually innocent of the offenses he was convicted of committing.

         A state prisoner has one year during which he must file a petition pursuant to 28 U.S.C. 2254. If he does not file his petition within that year, it is forever barred. 28 U.S.C. 2244(d) identifies the events or dates that trigger the commencement of the one year period, only one of which is applicable in this instance. The date that triggered the commencement of the one year period in this instance was "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." See 28 U.S.C. 2244(d)(1)(A).[2]

         The state Court of Appeals affirmed Poe's conviction in April of 2007. It is not clear when the state appellate court issued its mandate, but the undersigned assumes, arguendo, that the mandate was issued sometime the following month, i.e., sometime in May of 2007. According Poe thirty days for petitioning the Arkansas Supreme Court for discretionary review, and ninety days for petitioning the United States Supreme Court for a writ of certiorari, neither of which he did, his conviction became final sometime in September of 2007. The undersigned assumes for purposes of these Findings and Recommendation that the one year limitations period began sometime that same month, or sometime in September of 2007. He therefore had up to sometime in September of 2008 to file a timely petition pursuant to 28 U.S.C. 2254.

         Poe did not file the petition at bar during the one year period between sometime in September of 2007 and sometime in September of 2008. Instead, he waited over eight years after his conviction became final to file his petition, not doing so until February of 2016. Although 28 U.S.C. 2244(d)(2) provides that "[t]he time during which a properly filed application for [s]tate post-conviction or other collateral review... is pending shall not be counted toward any period of limitation..., " the provision has no application in this instance. Poe never filed a petition for state post-conviction or other collateral review at any time. Given his failure to do so, his petition is time barred and cannot now be considered unless the one year limitations period can be equitably tolled or he can otherwise show why his delay in filing the petition should be excused.

         In Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), the United States Supreme Court addressed the circumstances warranting application of the equitable tolling doctrine to the one year limitations period. The application of the doctrine requires the petitioner to make the following two-part showing: first, he has been pursuing his rights diligently; and second, some extraordinary circumstance stood in his way and prevented him from filing a timely petition.

         Poe has failed to show that the circumstances of this case warrant application of the equitable tolling doctrine. The undersigned so finds for two reasons. First, Poe did not pursue his rights diligently. He knew or should have known of the claims at bar by the time of his trial or, at the latest, by the time his conviction was affirmed on direct appeal. He took no steps, though, to raise the claims until he filed the petition at bar. The inescapable conclusion is that he simply slept on his rights.

         Second, no extraordinary circumstance prevented Poe from filing a timely petition in federal court. He maintains that he was prevented from filing a timely petition in federal court because his appellate attorney told Poe there were no available remedies apart from paying counsel to file a petition in state court.[3] Counsel's statement does not rise to the level of serious attorney misconduct. The statement is capable of more than one interpretation and indicates considerable confusion regarding state law.[4] In ...


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