United States District Court, E.D. Arkansas, Pine Bluff Division
Procedure for Filing Objections:
Recommended Disposition (“Recommendation”) has
been sent to Judge Billy Roy Wilson. Either party may file
written objections with the Clerk of Court within 14 days of
the date 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 belief.
objecting, any right to appeal questions of fact may be
jeopardized. And, if no objections are filed, Judge Wilson
may adopt this Recommendation without independently reviewing
Johnson County, Arkansas jury convicted petitioner Zachary
Shadwick of distributing, possessing, or viewing matter
depicting sexually explicit conduct involving a child;
failing to register as a sex-offender; and entering a school
campus as a registered sex-offender. Shadwick v.
State, 2016 Ark.App. 13, at 1. The Court sentenced Mr.
Shadwick to an aggregate term of twenty-six years in the
Arkansas Department of Correction. Id. Mr.
Shadwick's counsel filed a motion to withdraw as counsel
stating that there was no merit to an appeal. Id.
Mr. Shadwick filed a pro se statement of points for
reversal and the State responded. Id. at 2. The
Arkansas Court of Appeals found no merit to an appeal and
granted counsel's motion to withdraw. Id.
Shadwick filed a timely petition for post-conviction relief.
Shadwick v. State, 2017 Ark.App. 243, at 2. The
trial court denied the petition. (#2 at 19-26); Id.
On appeal, Mr. Shadwick argued that his trial counsel was
ineffective for failing to change the venue; for failing to
object to the State's use of his past criminal history
during the guilt and innocence phase of trial which
prejudiced him; for not objecting to faulty jury instructions
and failing to offer instructions regarding the evidence of
other crimes; failing to investigate and present evidence of
other crimes; failing to investigate and present evidence to
prove his innocence; and failing to challenge the trial
court's jurisdiction because he was in Montana at the
time of his offenses. Id. The Court of Appeals
affirmed the trial court's denial of post-conviction
April 9, 2018, Mr. Shadwick mailed his petition for writ of
habeas corpus to this Court, and the petition was filed on
April 13, 2018. In the petition, Mr. Shadwick claims he was
denied counsel to help with his state post-conviction
petitions and was denied a hearing on his state
post-conviction petition. He also claims that his counsel was
ineffective on many counts: (1) failing to seek a change of
venue; (2) failing to investigate the case; (3) failing to
object at trial; (4) failing to interview witnesses; (5)
failing to file proper motions both before trial and during
the trial; (6) failing to prepare him for trial; (6) failing
to communicate plea offers; (7) failing to object to a juror
who was “contacted by the people who had turned all
this over to the police;” (8) failing to object to the
investigation; (9) failing to cross-examine Mr.
Shadwick's ex-wife; (10) failing to inform him of his
right to testify; (11) failing to prepare for the sentencing
phase of trial or to present mitigating evidence; (12)
failing to pay attention at trial; (13) failing to argue that
he was not a resident of Arkansas; and (14) failing to object
to biased statements of the trial judge. (#2 at 5-11)
Finally, Mr. Shadwick claims his state appeal process was
hindered because he was not supplied a complete record and
Kelley has responded to the petition. (#12) She argues that
the petition is barred by the applicable statute of
limitations; that Mr. Shadwick procedurally defaulted his
claims; and that, in any event, the decision of the Arkansas
Court of Appeals denying the claims is entitled to deference.
Statute of Limitations:
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. 28 U.S.C. § 2244(d)(1)(A). For most habeas
cases, the limitations period begins to run from the later
of, “the date on which the judgement became final by
the conclusion of direct review or the expiration of the time
limit for seeking such review.” Id.
Arkansas Court of Appeals decided Mr. Shadwick's direct
appeal on January 13, 2016, and his time to seek review of
the decision in the Arkansas Supreme Court expired eighteen
days later, on February 1, 2016. Ark. Sup. Ct. R. 2-4(a);
Ark. R. App. P. Crim. 17. Mr. Shadwick did not seek review
from the Arkansas Supreme Court. The one-year federal statute
of limitations began to run for Mr. Shadwick on February 2,
2016, the day after the time expired for seeking review of
the decision handed down by the Court of Appeals. See
Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (the
judgment becomes “final” on the date that the
time for seeking review expires).
AEDPA provides for tolling during the pendency of a
“properly filed application for State post-conviction
or other collateral review.” 28 U.S.C.
§2244(d)(2). Further, the limitations period is subject
to equitable tolling if a petitioner is able to show that he
pursued his rights diligently, but that some extraordinary
circumstances stood in his way and prevented a timely ...