United States District Court, E.D. Arkansas, Pine Bluff Division
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.
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
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.
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.
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).
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.
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.
January 9, 2017, Phillips filed this § 2254 habeas
action. 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.
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.
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.
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 ...