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Clemmons v. Kelley

United States District Court, E.D. Arkansas, Northern Division

November 6, 2017

WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT


         I. Procedure for Filing Objections:

         This Recommended Disposition (“Recommendation”) has been sent to Judge Kristine G. Baker. Either party to this suit may file written objections with the Clerk of Court within fourteen (14) days of the filing of the Recommendation. Objections must be specific and must include the factual or legal basis for the objection. An objection to a factual finding must identify the finding of fact believed to be wrong and describe the evidence that supports that belief.

         By not objecting, any right to appeal questions of fact may be jeopardized. And, if no objections are filed, Judge Baker can adopt this Recommendation without independently reviewing the record.

         II. Background:

         On July 22, 2009, a Pulaski County jury found Petitioner Timothy Clemmons guilty of three counts of unlawful discharge of a firearm from a vehicle for firing shots from his car at the home of his ex-girlfriend. One of the shots severely injured a child within the home. Clemmons v. State, 2010 Ark.App. 810, at 1; (docket Entry #6-2). Mr.Clemmons was sentenced, both as a habitual criminal and under a firearm enhancement, to 72 years' imprisonment in the Arkansas Department of Correction. (#6-2) On December 8, 2010, the Arkansas Court of Appeals affirmed his conviction, rejecting his sufficiency, evidentiary, and suppression challenges. Clemmons, 2010 Ark.App. 810, at 1-3; (#6-5). Mr. Clemmons did not seek Arkansas Supreme Court review of that decision.

         Mr. Clemmons also did not seek post-conviction relief under Arkansas Rule of Criminal Procedure 37. However, on July 24, 2012, he did file a pro se petition for state habeas relief in which he alleged, among other things, his actual innocence. See State v. Clemmons, 60-CR-07-1305[1]; (#6 at 2). By Order signed on April 1, 2013, the Pulaski County Circuit Court denied his petition without a hearing, finding that none of the claims were cognizable under the governing habeas law. Id. On October 24, 2013, the Arkansas Supreme Court likewise denied relief and dismissed his appeal of the denial of state-habeas relief finding that he could not prevail on appeal. Clemmons v. State, 2013 Ark. 420, at 2-3 (per curiam); (#6-6).

         Mr. Clemmons next petitioned the Arkansas Supreme Court on December 2, 2016, for permission to return to the circuit court to pursue error coram nobis relief. (#6-7) That Court denied his petition by order issued on March 2, 2017. Clemmons v. State, 2017 Ark. 75, at 6 (per curiam); (#6-9).

         Mr. Clemmons initiated the instant petition on March 21, 2017, on several grounds: his right to due process was violated when he was convicted based on the perjured testimony of Officer Barry Brewer; his convictions violated the double-jeopardy clause; the prosecutor knowingly presented false testimony by allowing a known perjurer to testify; he was denied the right to confront his arresting officer; the prosecutor withheld an exculpatory witness statement that his car had been misidentified as having been at the scene; and he was unconstitutionally searched and seized. (#1)

         The Respondent contends that Mr. Clemmons's claims are barred by the applicable statute of limitations or, alternatively, are procedurally defaulted, are not cognizable in federal habeas law, have no merit, and are precluded because the state court's merits decision is due deference. (#6) In response, (#10, #16, #17 #18), Mr. Clemmons attempts to overcome the time bar by asserting his actual innocence. Specifically, he alleges that he was “framed” (#10 at 4) for the crimes and that newly discovered evidence, an affidavit from Tony Jackson (#16) not discovered until January 21, 2016, (#18) supports his claim.

         III. Discussion:

         A. Statute of Limitations

         The instant Petition is untimely.[2] The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year limitations period for a state prisoner to file a federal habeas corpus petition under 28 U.S.C. § 2254. 28 U.S.C. § 2244(d)(1). The triggering date in this case 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.” 28 U.S.C. § 2244(d)(1)(A). When a criminal defendant fails to seek discretionary review of his criminal conviction in the state's highest court, his judgment becomes final when the time for seeking such review expires. Gonzalez v. Thaler, 565 U.S. 134, 154 (2012).

         Here, Mr. Clemmons had 18 days from the entry of the December 8, 2010 decision of the Arkansas Court of Appeals that affirmed his conviction; that is, until December 26, 2010, to file a petition for review with the Arkansas Supreme Court. Ark. Sup. Ct. R. 2-4(a) (stating petitions for review must be filed within 18 calendar days of the date of the Arkansas Court of Appeals's decision). Because December 26th fell on a Sunday, however, the deadline rolled to Monday, December 27, 2010. See Ark. R. App. P.-Crim. 17. Therefore, the federal one-year limitation period began to run no later than December 27, 2010 and expired by December 27, 2011. Mr. Clemmons, however, did not file his petition until March 21, 2017, over five years after the statute of limitations had expired. Accordingly, there can be no dispute that Mr. Clemmons's petition is barred by the statute of limitations. 28 U.S.C. § 2244(d)(1)(A).

         B. ...

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