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Phillips v. Kelley

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

December 7, 2017

LESTER PHILLIPS ADC #113825 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 James M. Moody, 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 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 Lester Phillips (“Phillips”), an Arkansas Department of Correction (“ADC”) inmate. Doc. 2. Before addressing Phillips's habeas claims, the Court will review the procedural history of the case in state court.

         On October 30, 2013, a Jefferson County jury convicted Phillips of second-degree murder. He was sentenced, as a habitual offender, to forty years of imprisonment in the ADC. Doc. 7-2.

         Phillips appealed to the Arkansas Court of Appeals, which affirmed his conviction on August 26, 2015. Phillips v. State, 2015 Ark.App. 419, 467 S.W.3d 742. He then had eighteen days, until September 13, 2015, to file a petition for review with the Arkansas Supreme Court. Ark. Sup. Ct. R. 2-4(a). Because September 13 fell on a Sunday, the deadline became Monday, September 14, 2015. See Ark. R. App. P.-Crim. 17. Phillips did not file a petition for review with the Arkansas Supreme Court.

         On October 16, 2015, Phillips filed a timely pro se Rule 37 petition in the trial court, arguing that his trial counsel was constitutionally ineffective for failing to present any mitigating testimony during the sentencing phase of the trial. Doc. 7-4. Phillips signed the Rule 37 petition, but he did not include an affidavit verifying that it was true, correct and complete, as required by Ark. R. Crim. P. 37.1(c).

         On February 3, 2016, the trial court entered an order denying Rule 37 relief because: (1) Phillips had failed to comply with Rule 37.1(c)'s verification requirement; and (2) his claim was without merit. Doc. 7-6.

         On February 26, 2016, Phillips filed a notice of appeal of the denial of his Rule 37 petition. Doc. 7-7. Under Arkansas's procedural rules, he had ninety days, until May 26, 2016, to file the record with the clerk of the Arkansas Supreme Court. See Ark. R. App. P.-Crim. 4(b). In his notice of appeal, Phillips stated that: (1) he had requested that the transcript be prepared and sent to the Arkansas Supreme Court; and (2) he was simultaneously filing a request for leave to proceed in forma pauperis. Id. at 2. No in forma pauperis petition was ever filed, and Phillips did not file the record with the Arkansas Supreme Court by the May 26, 2016 deadline. Doc. 7-8 (trial court docket sheet); Doc. 7 at 3 n.2.

         On January 9, 2017, Phillips filed this § 2254 habeas action.[1] He argues: (1) his trial counsel was constitutionally ineffective; and (2) the trial court improperly denied his Rule 37 post-conviction petition without appointing him counsel or holding an evidentiary hearing. Docs. 2 & 3.

         In her Response, Respondent argues that Phillips's claims should be dismissed because: (1) the § 2254 Petition is time-barred; (2) his claims are procedurally defaulted; (3) his claim regarding the Rule 37 post-conviction proceeding is not cognizable; and (4) his ineffective-assistance claims are without merit. Doc. 7. Phillips has filed a Reply. Doc. 9.

         Because all of Phillips'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 ...


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