United States District Court, W.D. Arkansas, El Dorado Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT U.S. MAGISTRATE JUDGE.
RONNIE FLOW, (“FLOW”) an inmate confined at the
Grimes Unit of the Arkansas Department of Correction (ADC),
Newport, Arkansas, filed this petition for writ of a
habeas corpus pursuant to 28 U.S.C. §
2254. The Court directed FLOW to file an
Addendum to clarify his claims, and he has done so. ECF No.
6. The Respondent was served with a copy of the Petition and
Addendum and has responded. ECF No. 13. FLOW thereafter
forwarded a letter to the Court. ECF No. 16. The letter has
been field as a Reply to the Response and considered herein.
Petition was referred for findings of fact, conclusions of
law, and recommendations for the disposition of the case. The
Court has reviewed the Petition, the Response, pleadings, and
all exhibits submitted in this case. For the following
reasons, the Court recommends the Petition be
Procedural Background :
December 16, 1996, FLOW pled guilty to sexual abuse in the
first degree in the Circuit Court of Columbia County,
Arkansas, case number CR 96-143. He was sentenced to 60
months probation. ECF No. 13-1. That sentence expired several
years ago, and FLOW acknowledges he is not currently being
held in custody by the State of Arkansas as a result of this
1996 conviction. ECF No. 5, p. 2.
30, 2017, in the Circuit Court of Columbia County Arkansas,
case number CR 16-15, FLOW entered a guilty plea to two
counts of second-degree sexual assault. He was sentenced to a
total of 25 years' imprisonment with an additional
15-year suspended sentence. In the written plea agreement in
this 2017 case, FLOW acknowledges he had “2 prior
felonies.” ECF No. 13-3, p. 3.
February 13, 2017, FLOW filed the instant Petition for
habeas corpus relief pursuant to 28 U.S.C. §
2254 in this Court. He challenges his 1996 state court
conviction and raises the following claims for relief:
1. He alleges the victim of the sexual assault, to which he
pled guilty, was his legal spouse at the time of the assault.
ECF No. 1, p. 7;
2. He alleges he suffers from mental retardation which led to
him “being taken advantage of.” ECF No. 1, p. 8;
Addendum to the Petition FLOW indicates he is seeking
expungement of the 1996 conviction on the foregoing grounds.
ECF No. 5, p. 2.
Respondent asserts that the claims in the Petition are
time-barred by 28 U.S.C. §2244(d)(1)(A), FLOW is not
“in custody” pursuant to the challenged
conviction, FLOW has procedurally defaulted his claims, and
“expungement” is not a remedy afforded by §
2254. ECF No. 13.
FLOW has raised the issue of his mental capacity, the Court
has Ordered the parties to produce any records they have
regarding this issue. FLOW requested an extension of time to
provide the records regarding his mental capacity but never
produced any records. The Respondent produced over 100 pages of
records from FLOW's most recent criminal case and from
the ADC. The Court has reviewed all of these records as well
as the pleadings and other exhibits filed by the Parties.
One-year Statute of Limitations:
April 24, 1996, the Antiterrorism and Effective Death Penalty
Act of 1996 (hereinafter "AEDPA") was signed into
law. The law made several changes to the federal habeas
corpus statutes, including the addition of a one-year
statute of limitations. See 28 U.S.C. §
2244(d)(1). The AEPDA provides that the one-year limitations
period shall run from the latest of four possible situations.
Section 2244(d)(1)(A) specifies that the limitations period
shall run from the date a judgment becomes final by the
conclusion of direct review or the expiration of the time for
seeking such review. Section 2244(d)(1)(B) specifies that the
limitations period shall run from the date an impediment to
filing created by the State is removed.
2244(d)(1)(C) specifies that the limitations period shall run
from the date in which a constitutional right has been
initially recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.
Section 2244(d)(1)(D) states that the limitation period shall
run from "the date on which the factual predicate of the
claim or claims presented could have been discovered through
the exercise of due diligence." Section 2244(d)(2) also
provides that the time during which a "properly filed
application" for state post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of
limitation. Also, the United States Court of Appeals for the
Eighth Circuit has also held that "the one-year period