United States District Court, E.D. Arkansas, Pine Bluff Division
JERMAIN D. LEWIS ADC #161312 PETITIONER
WENDY KELLEY, Director Arkansas Department of Correction RESPONDENT
PROPOSED FINDINGS AND RECOMMENDATIONS
following recommended disposition has been sent to United
States District Court Judge James M. Moody. Any party may
serve and file written objections to this recommendation.
Objections should be specific and should include the factual
or legal basis for the objection. If the objection is to a
factual finding, specifically identify that finding and the
evidence that supports your objection. An original and one
copy of your objections must be received in the office of the
United States District Court Clerk no later than fourteen
(14) days from the date of the findings and recommendations.
The copy will be furnished to the opposing party. Failure to
file timely objections may result in waiver of the right to
appeal questions of fact.
are objecting to the recommendation and also desire to submit
new, different, or additional evidence, and to have a hearing
for this purpose before the District Judge, you must, at the
same time that you file your written objections, include the
the record made before the Magistrate Judge is inadequate.
the evidence proffered at the hearing before the District
Judge (if such a hearing is granted) was not offered at the
hearing before the Magistrate Judge.
detail of any testimony desired to be introduced at the
hearing before the District Judge in the form of an offer of
proof, and a copy, or the original, of any documentary or
other non-testimonial evidence desired to be introduced at
the hearing before the District Judge.
this submission, the District Judge will determine the
necessity for an additional evidentiary hearing, either
before the Magistrate Judge or before the District Judge.
your objections and “Statement of Necessity” to:
Clerk, United States District Court Eastern District of
Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR
Jermain D. Lewis, pro se, filed the instant action
seeking habeas relief. (DE #1, Petition) The Respondent, by
and through counsel, the Attorney General of the State of
Arkansas, filed a response to the Petition, stating that the
Petition should be dismissed as time barred. She acknowledges
that Petitioner filed a recent Rule 37 petition, however,
notes that it has no bearing on the timeliness of the statute
of limitations period. (DE #8, Response). Respondent
acknowledges though that the October 25, 2017, unsuccessful
Rule 37 petition contains some unexhausted ineffective
assistance of counsel claims that Petitioner could arguably
appeal. Id. In response, Petitioner asks this Court
to dismiss his petition without prejudice so that he may
properly exhaust his state remedies. (DE #9, Motion to
reasons that follow, the Court recommends that the petition
be dismissed with prejudice.
pleaded guilty to drug charges in December 2014, and he
received probation. He failed to comply with the terms and
conditions of his probation, and on June 15, 2015, the trial
court revoked his probation. Petitioner received ten years in
the Arkansas Department of Correction. A sentencing order was
filed July 17, 2015. (DE #8, pp. 4-8). On June15, 2017,
Petitioner filed a Rule 37 petition. The trial court held a
hearing on the petition on August 15, 2017, and denied the
petition by order dated October 25, 2017. Petitioner filed
the instant federal habeas petition on June 21, 2017.
2244 requires state habeas petitioners to file their
petitions within one year of “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). Petitioner pleaded guilty, and
the Little River Circuit Court filed his Sentencing Order on
July 17, 2015. The expiration of time for seeking review from
that Order was thirty days later, on August 17,
2015. Camacho v. Hobbs, 774 F.3d 931,
935 (8th Cir. 2015). Therefore, Petitioner had one year from
August 17, 2015-or until August 16, 2016, to file his
petition. He did not file the instant petition until June 21,
2017; thus it is untimely. As noted by Respondent, the filing
of a state post-conviction motion after the habeas period has
expired does not restart the limitation period. Jackson
v. Ault, 452 F.3d 734, 735 (8th Cir. 2006) (“the
one year AEDPA limit for federal habeas filing cannot be
tolled after it has expired.”). Petitioner filed his
Rule 37 petition on June 15, 2017, after the expiration
period had run.
is no reason to believe that equitable tolling would be
appropriate in this instance. See Kreutzer v.
Bowersox,231 F.3d 460, 463 (8th Cir. 2000)
(“Equitable tolling is proper only when extraordinary
circumstances beyond a prisoner's control make it
impossible to file a petition on time.”). Petitioner
brought the current action almost one year ...