United States District Court, E.D. Arkansas, Pine Bluff Division
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge Billy Roy Wilson. 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.
before the Court is a § 2254 Petition for a Writ of
Habeas Corpus filed by Jonathan Berks (“Berks”),
an Arkansas Department of Correction (“ADC”)
inmate. Doc. 2. Before addressing Berks's habeas claims,
the Court will review the procedural history of the case in
November 2, 2011, a Garland County jury convicted Berks of
second-degree murder and aggravated residential burglary. He
was sentenced to two consecutive thirty-year terms of
imprisonment in the ADC. Doc. 8-2, at 406-08.
appealed to the Arkansas Court of Appeals, which affirmed his
convictions on March 27, 2013. Berks v. State, 2013
Ark.App. 203, 427 S.W.3d 98 (Berks I). He then had eighteen
days, until April 14, 2013, to file a petition for review
with the Arkansas Supreme Court. Ark. Sup. Ct. R. 2-4(a).
Because April 14 fell on a Sunday, the deadline became
Monday, April 15, 2013. See Ark. R. App. P.-Crim.
17. Berks did not file a petition for review with
the Arkansas Supreme Court.
1, 2013, Berks filed a timely pro se Rule 37
petition in the trial court, which he later amended. Doc.
8-10, at 12-35. On December 27, 2013, the trial
court entered an order denying Rule 37 relief. Id.
at 36-37. On January 23, 2014, Berks filed a pro se
motion for modification of the trial court's order to
include a ruling on omitted issues, which was denied on
February 7, 2014. Id. at 38-41. From that date,
Berks had thirty days, until March 10, 2014, to file a notice
of appeal to the Arkansas Supreme Court. See Berks v.
State, 2015 Ark. 234, at 2-3, 463 S.W.3d 289, 291 (Berks
II). Berks did not file a notice of appeal by the
March 10, 2014 deadline.
April 7, 2015, Berks filed a pro se Motion for
Belated Appeal with the Arkansas Supreme Court, claiming that
he did not receive the trial court's final February 7,
2014 order denying Rule 37 relief until March 15, 2014,
after the deadline for filing a notice of appeal.
Doc. 8-11. On May 21, 2015, the Court granted
Berks's Motion for Belated Appeal of the trial
court's denial of his Rule 37 petition based on its
determination that Berks had demonstrated “good
cause” to excuse his failure to timely file a notice of
appeal. Berks II, 2015 Ark. 234, at 3-4, 463 S.W.3d at
October 27, 2016, the Arkansas Supreme Court affirmed the
trial court's order denying Rule 37 relief. Berks v.
State, 2016 Ark. 364, 501 S.W.3d 366 (Berks III).
December 2, 2016, Berks initiated this § 2254 habeas
action. He argues: (1) his trial counsel was
constitutionally ineffective in advising him to reject a
thirty-year plea offer; and (2) his convictions were obtained
in violation of the Double Jeopardy Clause. Doc. 2.
Response, Respondent argues that Berks's claims should be
dismissed because: (1) the § 2254 Petition is
time-barred; (2) his ineffective assistance claim is without
merit; and (3) his double jeopardy claim is procedurally
defaulted and without merit. Doc. 8. Berks filed a Reply.
all of Berks's habeas claims are barred by the one-year
statute of limitations contained in 28 U.S.C. §
2244(d)(1), the Court need not address Respondent's other
arguments for dismissal.
Calculation of Limitations Period
prisoner seeking to challenge his state court conviction in
federal court generally must file a petition for habeas
relief within one year of the date the “judgment [of
conviction] 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, 150
(2012); see Johnson v. Hobbs, 678 F.3d 607, 610 (8th
Cir. 2012) (in cases from the Arkansas Court of Appeals, a
conviction becomes “final” when the prisoner can
no longer file a petition for review with the Arkansas
March 27, 2013, the Arkansas Court of Appeals affirmed
Berks's convictions. Because he elected not to seek
discretionary review from the Arkansas Supreme Court, his
convictions became “final” on April 16, 2013,
when he could no longer seek review from that
Court. Absent any tolling, Berks had one year
from that date to initiate this § 2254 habeas action.
federal limitations period is tolled while a “properly
filed” application for post-conviction relief is
pending in state court. 28 U.S.C. § 2244(d)(2). However,
the limitations period is not tolled in the interval
between the conclusion of direct review and the filing of a
state post-conviction petition. Bear v. Fayram, 650
F.3d 1120, 1125 (8th Cir. 2011). Moreover, an application
remains “pending” only “as long as the
ordinary state collateral review process is in process -
i.e., until the completion of that process.”
Carey v Saffold, 536 U.S. 214, 219-20 (2002). Once a
prisoner's deadline has passed for filing a notice of
appeal of the denial of state postconviction relief, without
action by the prisoner, the application “cease[s] to be
‘pending'” because “there is nothing
‘in continuance' or ‘not yet
decided.'” Coulter v. Kelley, 871 F.3d
612, 622 (8th Cir. 2017).
on these statutory tolling rules, the Court has calculated
the one-year limitations period for the timely initiation of
this federal habeas action as follows:
• March 27, 2013: The Arkansas Court of Appeals enters
its decision, on direct appeal, affirming ...