Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Berks v. Kelley

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

November 30, 2017

JONATHAN BERKS ADC #151273 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 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.

         I. Introduction

         Pending 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 state court.

         On 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.

         Berks 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.

         On May 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.

         On 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 291-92.

         On 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).

         On December 2, 2016, Berks initiated this § 2254 habeas action.[1] 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.

         In her 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. Doc. 10.

         Because 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.

         II. Discussion

         A. Calculation of Limitations Period

         A state 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 Supreme Court).

         On 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.[2] Absent any tolling, Berks had one year from that date to initiate this § 2254 habeas action.

         B. Statutory Tolling

         The 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).

         Based 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.