United States District Court, W.D. Arkansas, Fayetteville Division
JAMES C. SOLOMON, PETITIONER
STATE OF ARKANSAS, RESPONDENT
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court is the Report and Recommendation
("R&R") (Doc. 7) filed in this case on January
20, 2016, by the Honorable Erin L. Setser, United States
Magistrate Judge for the Western District of Arkansas,
regarding Petitioner James C. Solomon's second
application for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 ("Petition"). In light of Solomon's
Objections to the R&R (Doc. 10), which he filed on March
23, 2016, the Court has conducted a de novo review
of the record, focusing in particular on the portions of the
R&R to which specific objections have been made, in
accordance with 28 U.S.C. § 636(b)(1)(C).
January 19, 2012, Solomon filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254 in this Court, case number
5:12-cv-05011. The Honorable James R. Marschewski, Chief
United States Magistrate Judge for the Western District of
Arkansas, recommended dismissal with prejudice because the
petition was untimely, Solomon failed to exhaust his state
remedies, and his arguments were without merit. Solomon
v, ADC, No. 5:12-cv-05011, Doc. 10. The petition was
thereafter dismissed with prejudice on July 11, 2012.
Id. at Doc. 15.
December 22, 2015, Solomon filed this, his second Petition,
which Magistrate Judge Setser reviewed and recommended be
dismissed without prejudice as a second or successive §
2254 petition filed without complying with the certification
requirement in § 2244(b)(3)(A). (Doc. 7). Solomon then
filed his response to the Magistrate Judge's R&R, in
which he argues that his lack of access to the law library
and legal materials prevented him from filing his first
§ 2254 petition within the statute of limitations. (Doc.
10, pp. 2-4). Additionally, Solomon generally argues that he
is innocent, that the evidence presented at trial proves it,
and that he deserves a chance to have his claims heard.
Id. at pp. 4-8.
first habeas petition was dismissed with prejudice as
untimely, for failure to exhaust state remedies, and because
his arguments were meritless. See Solomon v. ADC,
No. 5:12-CV-05011, Doc. 10. Dismissal of a habeas petition on
statute of limitations grounds constitutes an adjudication on
the merits, rendering subsequent petitions "second or
successive" and thus subject to the provisions of §
2244(b). See Diaz-Diaz v. United States, 297
F.App'x 574, 575 (8th Cir. 2008) (per curiam) (holding
that a denial as untimely is considered to be made on the
merits); Johnson v. Workman, 446 F.App'x 92, 93
n.1 (10th Cir. 2011) ("The dismissal of a § 2254
petition as time-barred is a decision on the merits for
purposes of determining whether a subsequent petition is
second or successive."); McNabb v. Yates, 576
F.3d 1028, 1029-30 (9th Cir. 2009) (per curiam) (same);
Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005)
(same); Altman v. Benik, 337 F.3d 764, 766 (7th Cir.
2003) (per curiam) (same).
28 U.S.C. § 2244(b)(3)(A) provides:
Before a second or successive application permitted by this
section is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order
authorizing the district court to consider the application.
because this Petition is a second or successive one, and
Solomon did not obtain prior authorization from the Court of
Appeals before filing, this Court is without jurisdiction to
consider the Petition, and it must be dismissed. See
Williams v. Hopkins, 130 F.3d 333, 336 (8th Cir. 1997)
(holding that where petitioner's action under 42 U.S.C.
§ 1983 was construed as the equivalent of a successive
habeas action, the district court correctly found that it did
not have jurisdiction because leave required by 28 U.S.C.
§ 2244(b)(3)(A) had not been requested or obtained).
seems to raise several arguments as to why §
2244(b)(3)(A) should not apply to him. First, Solomon objects
to the earlier dismissal by arguing he did not know about the
statute of limitations requirement in § 2244(d) because
he did not have access to the law library or legal materials.
(Doc. 10, p. 2-4). However, "[prisoners are not exempt
from the principle that everyone is presumed to know the law
and is subject to the law whether or not he is actually aware
of the particular law of which he has run afoul."
Baker v. Norris, 321 F.3d 769, 772 (8th Cir. 2003).
although Solomon does not couch his argument as one for
tolling, he is not entitled to equitable tolling to exempt
him from § 2244(b)(3)(A)'s certification
requirement. Equitable tolling is only available "when
extraordinary circumstances beyond a prisoner's control
make it impossible to file a [habeas corpus] petition on time
. . . [or] when conduct of the defendant has lulled the
plaintiff into inaction." Jihad v. Hvass, 267
F.3d 803, 805 (8th Cir. 2001). Equitable tolling cannot be
based on commonplace and non-external excuses such as
inadequate legal assistance or prisoner ignorance, and an
incarcerated inmate's limited law library access and
alleged lack of notice of the statute of limitations are
inadequate reasons to warrant equitable tolling.
Kreutzerv. Bowersox, 231 F.3d 460, 463 (8th Cir.
2000), cert, denied, 534 U.S. 863(2001).
Solomon argues that he is actually innocent and seems to
suggest that this argument exempts him from §
2244(b)'s requirement that he receive authorization from
the Court of Appeals before filing a successive petition.
However, this is simply not true. Although a claim of actual
innocence may serve as a gateway through which a petitioner
may pass to overcome a procedural bar, a state prisoner
seeking relief in a successive federal habeas proceeding must
"come forward not only with new reliable evidence which
was not presented at trial, but . . . come forward with new
reliable evidence which was not available at trial through
the exercise of due diligence." Kidd v. Norman,
651 F.3d 947, 953 (8th Cir. 2011). Here, Solomon's
actual-innocence argument relies only on the testimony given
at trial and his interpretation of that testimony, neither of
which constitutes new reliable evidence. (Doc. 10, pp. 5-8).
in Gonzalez v. Crosby, the United States Supreme
Court stated that courts of appeals must determine that a
successive petition presents a claim not previously raised
that is sufficient to meet § 2244(b)(2)'s new-rule
or actual-innocence provisions "before [a]
district court may accept [the] successive petition for
filing." 545 U.S. 524, 529 (2005) (emphasis added).
See also Pawliszko v. Dooley, 2015 WL 9312526 (D.
Minn. Nov. 30, 2015) ("Indeed, an actual-innocence
exception to § 2244(b)(3)(A) would nearly eviscerate
that provision, as actual-innocence claims are one of only
two types of claims that can be authorized at all
for consideration in a second-or-successive habeas
petition."). Thus, because this Petition is second or