United States District Court, W.D. Arkansas, El Dorado Division
O. HICKEY UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation filed March 8,
2018, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. ECF
No. 31. On February 15, 2017, the petitioner, Ronnie Flow
(“Petitioner”), filed this pro se
petition for a writ of habeas corpus under 28 U.S.C. §
2254 challenging his 1999 conviction, pursuant to a guilty
plea, for sexual abuse in the first degree in the Circuit
Court of Columbia County, Arkansas.ECF No. 1. Petitioner was
sentenced to a 60-month term of probation, a $1, 000.00 fine
and $150.00 in court costs. ECF No. 16-1. Petitioner
challenges his conviction on the following grounds: 1) he was
not convicted at trial and did not enter a plea of guilty;
and 2) he was taken advantage of in the state court
proceedings because he suffers from mental retardation.
Petitioner also requests an expungement of his conviction on
the ground that he was legally married to the victim of the
crime for which he was convicted.
Bryant recommends that Petitioner's habeas corpus
petition should be dismissed for several reasons. First,
Judge Bryant recommends that the petition be dismissed as
time barred by the one-year statute of limitations set forth
in 28 U.S.C. § 2244(d)(1)(A). Moreover, Judge Bryant
found that Petitioner is not entitled to statutory tolling
under 28 U.S.C. § 2244(d)(2), because he failed to apply
for post-conviction relief. Judge Bryant further found that
Petitioner's assertion that he suffers from “mental
retardation” is not an “extraordinary
circumstance” that warrants equitable tolling, as
Petitioner has failed to present evidence of his alleged
mental incapacity. In addition, Judge Bryant recommends that
the petition should be dismissed because Petitioner is not in
custody pursuant to the conviction he is challenging. With
regard to his request for an expungement of his conviction,
Judge Bryant recommends that it should be dismissed because a
§ 2254 proceeding is not the appropriate vehicle to
obtain an expungement of a state criminal conviction. Judge
Bryant also recommends that no certificate of appealability
should issue in this matter.
objections, Petitioner rehashes many of the same assertions
raised in his petition. While Petitioner asserts that he
currently receives Disability and Supplemental Security
Income and has been “legally found to be mentally
retarded by the United States government, ” Petitioner
has failed to produce evidence of this claim. In addition,
Petitioner repeats his claims that he was legally married to
the victim, failed to sign the plea agreement, and his mental
evaluation “was not done properly.” The Court
overrules Petitioner's objections, as he offers no error
of law or fact from which the Court finds it necessary to
depart from the Report and Recommendation.
objection also includes a request for appointment of counsel.
It is well established that “[t]here is no
constitutional or statutory right to counsel in habeas
proceedings.” Knutson v. McNurlin, No. CV
15-2807 (DSD/BRT), 2015 WL 9224180, at *2 (D. Minn. Nov. 23,
2015), report and recommendation adopted, No. CV
15-2807(DSD/BRT), 2015 WL 9165885 (D. Minn. Dec. 16, 2015)
(citing McCall v. Benson, 114 F.3d 754, 756 (8th
Cir.1997)). However, a district court judge may appoint
counsel for a habeas petitioner “if the interests of
justice so require.” 18 U.S.C. § 3006A(a)(2)(B).
If an evidentiary hearing is not required, the decision to
appoint counsel is within the Court's discretion.
Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir.
1994). “If the petitioner has presented only claims
that are frivolous or clearly without merit, the district
court should dismiss the case on the merits without
appointing counsel.” Id. (citation omitted).
Court finds that an evidentiary hearing is not required in
this matter, as the issues presented can be resolved with a
review of the petition and the state court record, which
clearly establish that Petitioner is not entitled to habeas
relief. See Schriro v. Landrigan, 550 U.S. 465, 474
(2007) (“[I]f the record refutes the applicant's
factual allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary
hearing.”). The Court further finds that the interests
of justice do not warrant the appointment of counsel because,
as determined by Judge Bryant's Report and
Recommendation, the record demonstrates that Petitioner's
claims are clearly without merit.
after reviewing the record de novo, the Court adopts
the Report and Recommendation in toto.
Petitioner's petition is hereby DENIED.
The Court further orders that no Certificate of Appealability
issue in this matter.
IS SO ORDERED.
 Petitioner has filed a separate habeas
petition challenging his 1996 conviction for similar charges
from the Circuit Court of Columbia County, Arkansas. See
Flow v. Kelly, No. ...