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Shadwick v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

August 1, 2018

ZACKERY WARREN SHADWICK ADC #129543 PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          RECOMMENDED DISPOSITION

         I. Procedure for Filing Objections:

         This 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.

         By not 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 the record.

         II. Background:

         A 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.

         Mr. 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 relief. Id.

         III. Petitioner's Claims:

         On 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 trial transcript.

         Director 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.

         IV. Statute of Limitations:

         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. 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.

         The 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).

         A. Tolling

         The 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 ...


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