United States District Court, E.D. Arkansas, Pine Bluff Division
Poe, Plaintiff, Pro Se.
Kelley, Defendant, represented by Kristen C. Green, Arkansas
Attorney General's Office.
FINDINGS AND RECOMMENDATION
PATRICIA S. HARRIS, Magistrate Judge.
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.
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.
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. 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.
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).
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.
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.
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.
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.
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. 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. In ...