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Flow v. Kelly

United States District Court, W.D. Arkansas, El Dorado Division

March 8, 2018

RONNIE FLOW PETITIONER
v.
WENDY KELLY, Director Arkansas Department of Correction RESPONDENT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE.

         Petitioner, 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.[1] 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.

         The 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 DENIED:

         A. Procedural Background [2]:

         On 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.[3] 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.

         On May 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.

         B. Current Petition:

         On February 13, 2017[4], 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; and

         In Addendum to the Petition FLOW indicates he is seeking expungement of the 1996 conviction on the foregoing grounds. ECF No. 5, p. 2.

         The 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.

         Because 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.[5] 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.

         C. Discussion:

         1. One-year Statute of Limitations:

         On 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.

         Section 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 is ...


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