United States District Court, E.D. Arkansas, Pine Bluff Division
LARRY E. WALDEN ADC #149502 PETITIONER
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT
Procedure for Filing Objections:
Recommended Disposition (“Recommendation”) has
been sent to Judge James M. Moody Jr. Either party to this
suit may file written objections with the Clerk of Court
within fourteen (14) days of the filing of the
Recommendation. Objections must be specific and must include
the factual or legal basis for the objection. An objection to
a factual finding must identify the finding of fact believed
to be wrong and describe the evidence that supports that
objecting, any right to appeal questions of fact may be
jeopardized. And, if no objections are filed, Judge Moody can
adopt this Recommendation without independently reviewing the
2011, Petitioner Larry Walden was found guilty by a Sebastian
County, Arkansas jury of aggravated robbery and was sentenced
as a habitual offender to 60 years' imprisonment in the
Arkansas Department of Correction. (Docket entry #11-2) Mr.
Walden appealed, and his conviction was affirmed by the
Arkansas Court of Appeals on May 2, 2012. Walden v.
State, 2012 Ark.App. 307. (#11-5)
27, 2012, Mr. Walden timely filed a petition for
post-conviction relief under Ark. R. Crim. P.
Walden v. State, 2014 Ark. 10; Ark. R. Crim. P.
37.2(c)(ii) (petitions following appeals must be filed within
60 days of the issuance of the mandate). The circuit court
denied the petition without a hearing, and Mr. Walden
appealed. Id. The Arkansas Supreme Court reversed
and remanded the appeal directing the circuit court to more
fully specify its findings. Id.
hearing, Mr. Walden again was denied post-conviction relief.
He appealed the denial of his petition to the Arkansas
Supreme Court. On September 15, 2016, the Arkansas Supreme
Court affirmed the denial of post-conviction relief, finding
that Mr. Walden had failed to demonstrate either deficient
performance or prejudice under Strickland v.
Washington, 466 U.S. 668 (1985). Walden v.
State, 2016 Ark. 306, 11. The mandate issued on October
Walden initiated the instant petition on September 18, 2017.
(#2) Respondent contends that Mr. Walden's claims are
barred by the applicable statute of limitations. In the
alternative, Respondent argues the claims either are
procedurally defaulted or that the Arkansas Supreme
Court's adjudication of the
ineffective-assistance-of-counsel claims is due deference.
instant Petition is untimely. The Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) establishes a
one-year limitations period for a state prisoner to file a
federal habeas corpus petition under 28 U.S.C. § 2254.
28 U.S.C. § 2244(d)(1). The triggering date in this case
was “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).
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,
Mr. Walden had 18 days from the entry of the May 2, 2012,
decision of the Arkansas Court of Appeals affirming his
conviction; that is, until May 20, 2012, to file a petition
for review with the Arkansas Supreme Court. Ark. Sup. Ct. R.
2-4(a) (stating petitions for review must be filed within 18
calendar days of the date of the Arkansas Court of
Appeals's decision). However, because May 20th fell on a
Sunday, the deadline rolled to May 21, 2012. See Ark. R. App.
P.-Crim. 17. Therefore, the federal one-year limitation
period began to run no later than May 22, 2012.
Mr. Walden filed a proper Rule 37.1 petition with the circuit
court on June 27, 2012, the statute of limitations was tolled
with respect to his habeas claim. 28 U.S.C. §
2244(d)(2). Section 2244(d)(2) provides that the time during
which a “properly filed application” for State
post-conviction review with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of
limitation. The limitation period resumes, however, when the
mandate affirming the trial court's denial of
post-conviction relief is issued by the state supreme court.
See Lawrence v. Florida, 549 U.S. 327, 331 (2007)
(state post-conviction application remains
“pending” until state's highest court has
issued its mandate or denied review); Payne v.
Kemna, 441 F.3d 570, 572 (8th Cir. 2006) (state
post-conviction proceedings reached final resolution upon
issuance of mandate); Ark. Sup. Ct. R. 5-3(a) (in all cases,
mandate will be issued when appellate decision becomes
the time for filing a petition under 28 U.S.C. § 2254
began running, at the latest, on October 6, 2016, the day
after the mandate was issued. Subtracting the 36 days that
ran between the time Mr. Walden's direct appeal became
final and the tolling period began (May 22, 2012 to June 27,
2012), he had 329 days, or until August 31, 2017, to file a
timely federal habeas petition. Mr. Walden, however, did not
file his petition until September 18, 2017, roughly 18 days
after the statute of limitations had expired. Accordingly,
there is no question that Mr. Walden's petition is barred
by the statute of limitations. 28 U.S.C. §
the limitations period in § 2244(d)(1) is subject to
equitable tolling, Holland v. Florida, 560 U.S. 631,
645 (2010), in order to benefit from equitable tolling, a
petitioner must show that he pursued his rights diligently
but that some extraordinary circumstances stood in his way
and prevented a timely filing. Id. at 649 (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Here, Mr. Walden does not allege that extraordinary
circumstances prevented him from filing a timely habeas
petition. He does not point to any action or circumstance