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Tilson v. Kelley

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

January 17, 2017

GECOBA L. TILSON ADC#115355 PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge D. P. Marshall, Jr. 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 the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.

         I. Background

         Pending before the Court is a § 2254 Petition for a Writ of Habeas Corpus filed by Petitioner, Gecoba L. Tilson (“Tilson”). Doc. 2. Before addressing Tilson's habeas claims, the Court will review the procedural history of the case in state court.

         On May 3, 2012, a Faulkner County jury convicted Tilson of two counts of aggravated robbery, one felony count of theft of property, and one misdemeanor count of theft of property. Doc. 7-2. He received an aggregate sentence of 23 years' imprisonment. Id.

         Tilson appealed to the Arkansas Court of Appeals, which affirmed his convictions on September 18, 2013. Tilson v. State, 2013 Ark.App. 510.[1] Tilson did not file a petition for review with the Arkansas Supreme Court.

         On December 10, 2013, Tilson filed a pro se Rule 37 Petition in Faulkner County Circuit Court raising various ineffective-assistance of counsel claims. Doc. 7-9. On January 10, 2013, the trial court entered an Order denying Rule 37 relief on the merits, without addressing whether Tilson's Rule 37 Petition was timely. Doc. 7-13 & 14.

         Tilson appealed the denial of Rule 37 relief. On February 5, 2015, the Arkansas Supreme Court affirmed the denial of Rule 37 relief based solely on the ground the petition was filed too late.[2] Tilson v. State, Supreme Court of Arkansas Case No. CR-14-383 (February 5, 2015); Doc. 7-16.

         On January 29, 2016, Tilson initiated this pro se habeas action.[3] Doc. 2. He argues that his trial counsel was constitutionally ineffective because he committed three separate trial errors. Respondent argues that Tilson's habeas claims are time-barred and, alternatively, procedurally defaulted. Doc. 7.

         Because all of Tilson's habeas claims are barred by the one-year statute of limitations contained in 28 U.S.C. § 2244(d)(1), the Court recommends that this habeas action be dismissed, with prejudice.

         II. Discussion

         A. Facts Supporting Tilson's Conviction

         Tilson was convicted of robbing, at gun-point, the Tobacco Superstore in Conway, Arkansas. Dana Clark, the former manager of the Tobacco Superstore, testified that, shortly before closing on Friday, August 7, 2009, two black men entered the Tobacco Superstore, pointed guns at her, and demanded: “Give me the g-d money.” The robbers took approximately $1320 from the register, cigarettes, and her cell phone. Other witnesses testified that the robbers then fled on foot.[4]

         Shortly after the robbery, the police, with the help of a search dog, found Charles Foster hiding in thick weeds within three or four blocks of the crime scene. Police found a purse belonging to Kerri Bradley, a store employee, and cigars taken from the store. A gun was found nearby. Police arrested Foster.[5]

         Police concluded that the robbery was an “inside” job. They believed that Kerri Bradley, who was working in the store when the robbery took place, was involved. Shortly after the robbery, police arrested Kerri Bradley at the store. Police also arrested her boyfriend, Keith Tilson, when he came to pick her up from work, because they believed he too participated in the robbery. Keith Tilson is Petitioner Gecoba Tilson's brother.

         After making these three arrests, the police went to the apartment of Keith Tilson and Kerri Bradley in the early morning hours of August 8. Petitioner Gecoba Tilson was in the apartment when police knocked, but refused to open the door.

         After calling a SWAT team, police took Tilson into custody at approximately 3:25 a.m. on Saturday, August 8, 2009.[6]

         The police then executed two search warrants at the apartment. In the first search, they found a sweaty shirt believed to have been worn by Tilson during the robbery. In the second search, they found a cell phone taken from Dana Clark and tennis shoes believed to have been worn by Tilson during the robbery. Both items were shown to the jury at trial, along with video footage of the robbery.[7]

         Following his arrest, Tilson gave two voluntary statements to the police. Both statements were recorded and played for the jury at trial. In the first statement, Tilson denied any involvement in the robbery. In the second statement, one day later, Tilson confessed that he was the second gunman in the robbery and ...


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