United States District Court, E.D. Arkansas, Northern Division
KRISTINE G. BAKER, UNITED STATES DISTRICT JUDGE
Court has received a Recommended Disposition from United
States Magistrate Judge Beth Deere (Dkt. No. 19). Petitioner
Timothy Mack Clemmons filed objections (Dkt. Nos. 20, 21,
25). After careful review of the Recommended Disposition, a
de novo review of the record, and a review of all of
Mr. Clemmons' objections thereto, the Court adopts the
Recommended Disposition and dismisses Mr. Clemmons'
petition with prejudice (Dkt. No. 19).
the Recommended Disposition decides the matter on procedural
grounds, ultimately concluding that Mr. Clemmons'
petition must be dismissed because he is in procedural
default and his petition is time-barred by the Antiterrorism
and Effective Death Penalty Act (“AEDPA”)
one-year statute of limitations period for a state prisoner
to file a federal habeas corpus petition under 28 U.S.C.
§ 2254. 28 U.S.C. § 2244(d)(1). As set forth in the
Recommended Disposition, Judge Deere determines that Mr.
Clemmons is not entitled to equitable tolling of the
AEDPA's one-year statute of limitations because Mr.
Clemmons filed his state petitions for habeas and coram
nobis relief after the one-year statute of limitations
to file his federal habeas corpus petition had run, and he
failed to demonstrate the requisite diligence (Dkt. No. 19,
at 4-5). Further, Judge Deere recommends that Mr.
Clemmons' procedural default not be excused because Mr.
Clemmons failed to present sufficient evidence to demonstrate
that he is entitled to the “actual innocence”
exception to the one-year statute of limitations under the
AEDPA (Id., at 5-7).
objections, Mr. Clemmons reasserts his actual innocence and
argues that, because Judge Deere ignored the affidavit of
Tony Jackson, a “new eyewitness, ” the Court
should not adopt the Recommended Disposition and should
therefore excuse his procedural default and equitably toll
the one-year statute of limitations that applies to his
federal habeas corpus petition (Dkt. No. 20, at 1-2). The
Court notes that, at the time Judge Deere issued the
Recommended Disposition, Mr. Clemmons had failed to present
Mr. Jackson's affidavit for consideration (Dkt. No. 19,
at 6-7). Mr. Clemmons has now presented a copy of that
affidavit, along with his objections to the Recommended
Disposition (Dkt. No. 21, at 16). Furthermore, after Judge
Deere issued the Recommended Disposition, Mr. Clemmons filed
a motion to supplement claim, in which he states that he is
“not adding a new claim” but rather seeks to
“strengthen” his prior claim (Dkt. No. 28, at
1-2). In this motion, Mr. Clemmons states that: (1) evidence
in his case-shell casings-was omitted from the record,
depriving him of a fair trial; (2) police officers and
investigators offered false testimony at trial; and (3) the
Arkansas Court of Appeals erroneously held that there was no
dispute as to whether he verbally consented to a search
(Id., at 2-5). While the Court has the discretion to
construe a prisoner plaintiff's objections to a
magistrate judge's report as a motion for leave to amend
the complaint, see Kaden v. Slykhuis, 651 F.3d 966,
968 (8th Cir. 2011) (unpublished per curiam), the Court
declines to do so in this instance since Mr. Clemmons has
specifically indicated that he does not intend to bring a new
claim. Rather, the Court grants Mr. Clemmons' motion to
supplement claim (Dkt. No. 28) and treats it as a
supplemental objection to the Recommended Disposition.
the Court agrees with Judge Deere that Mr. Clemmons'
petition is untimely. The AEDPA establishes a one-year
limitations period for a state prisoner to file a federal
habeas corpus petition under 28 U.S.C. § 2254.
See 28 U.S.C. § 2244(d)(1). In Mr.
Clemmons' case, the one-year period was triggered when
the time for seeking direct review of his final conviction
expired. 28 U.S.C. § 2244(d)(1)(A). As explained in more
detail in the Recommended Disposition, because Mr. Clemmons
failed to file a petition for review with the Arkansas
Supreme Court, the federal one-year limitation period expired
by December 27, 2011, more than five years before Mr.
Clemmons filed his present petition.
the Court also agrees that Mr. Clemmons is not entitled to
statutory tolling of the one-year statute of limitations. The
federal habeas statute 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). The Eighth Circuit Court of Appeals has
held that a state collateral proceeding cannot toll the
one-year limitations period in § 2244(d)(1) if such
state proceedings are initiated after the one-year
limitations period has run. Gray v. Gammon, 283
F.3d. 917, 918 (8th Cir. 2002) (per curiam), cert.
denied, 283 F.3d 917 (2002). Finally, while the Supreme
Court has held that the one-year limitations period may be
equitably tolled due to “extraordinary circumstances,
” see Holland v. Florida, 560 U.S. 631, 645
(2010), Mr. Clemmons has not pointed to any action or
circumstance that prevented him from bringing a timely
federal habeas petition. Accordingly, the Court
concludes that he is not entitled to equitable tolling of
§ 2244(d)(2)'s one-year limitations period.
Court agrees with Judge Deere that Mr. Clemmons has not met
the high threshold to show “actual innocence” so
as to overcome the expiration of the statute of limitations.
A habeas petitioner's claim of actual innocence
is “a gateway through which a habeas petitioner must
pass to have his otherwise barred constitutional claim
considered on the merits.” Schlup v. Delo, 513
U.S. 298, 315 (1995) (citation omitted). The Supreme Court
has cautioned that “tenable actual- innocence gateway
pleas are rare” and that “a petitioner does not
meet the threshold requirement unless he persuades the
district that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a
reasonable doubt.” McQuiggin v. Perkins, 569
U.S. 383, 386 (2013) (quoting Schlup, 513 U.S. at
329). For the actual innocence exception to apply, a habeas
petitioner must come forward with new reliable evidence that
was “not available at trial and could not have been
discovered earlier through the exercise of due
diligence.” Amrine v. Bowersox, 238 F.3d 1023,
1029 (8th Cir. 2001). As explained, after Judge Deere entered
the Recommended Disposition, Mr. Clemmons filed a copy of Mr.
Jackson's affidavit. In this affidavit, Mr. Jackson
asserts the following:
I was in the house next to Tim Clemmons['] house when I
saw lights outside the window of the house, and I looked out
the window and seen [sic] the police in front of Tim
Clemmons['] house. It was just 2 cars at first with
lights on top of them, [and] two officers got out of their
cars and went to the front door, I don't think nobody
came to the door[, ] then they like went on [the] side of the
house in the drive way going around to the back of the house,
and it was like 5 or 6 minutes or so and while they were
around the back of the house an unmarked looking car pulled
up with no lights on top, kind of brown or gold looking with
tint on it, pulled up and a white male got out and walked up
the drive way with his flash light out to the driver side of
Tim Clemmons' “Honda” open[ed] the door and
took something small out of his pocket and threw it in the
car and close[d] the door . . . .
(Dkt. No. 21, at 16). Furthermore, in his motion to
supplement claim, Mr. Clemmons asserts that certain evidence
is missing from the record, false testimony was offered at
trial, and the Arkansas Court of Appeals committed an error
(Dkt. No. 28). In support of these assertions, Mr. Clemmons
presents the following documents: (1) a
“Specialist's Report” that indicates that
five shell casings were delivered to the Arkansas State Crime
Lab for analysis; (2) police reports; (3) an Arkansas Supreme
Court opinion; and (4) the Circuit Court of Jefferson County,
Arkansas' opinion dismissing his petition for writ of
habeas corpus (Id., at 7-16).
Court rejects Mr. Clemmons' argument that he has
presented new and reliable evidence of actual innocence to
excuse his procedural default. Assuming that Mr.
Jackson's affidavit relays accurate information, Mr.
Clemmons presents no reason why Mr. Jackson could not have
presented his testimony at trial or why such evidence could
not have been discovered through the exercise of due
diligence. See Amrine, 238 F.3d at 1029. As for the
arguments and exhibits presented in Mr. Clemmons' motion
to supplement claim, it is not clear to the Court that this
is “new” evidence: Mr. Clemmons does not assert
or otherwise demonstrate that the evidence presented in that
motion was not presented to the trial court. Furthermore,
even if such evidence is new, Mr. Clemmons has failed to
explain why such evidence could not have been presented at
trial. Accordingly, because Mr. Clemmons has failed to come
forward with new reliable evidence which was not available at
trial through the exercise of due diligence, the Court finds
that the actual innocence exception to the one-year statute
of limitations does not apply. The Court concludes that Mr.
Clemmons cannot overcome his failure to file timely his
federal habeas petition. Consistent with the Court's
discussion above, the Court adopts the Recommended
Disposition in its entirety as this Court's findings in
all respects (Dkt. No. 19).