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McCulley v. Kelly

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

March 22, 2019

WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT


         The following Recommended Disposition ("Recommendation") has been sent to United States District Judge James Moody, Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.

         I. Background

         Pending before the Court is a § 2254 Petition for a Writ of Habeas Corpus filed by Petitioner, Troy McCulley ("McCulley"). Doc. 2. Before addressing McCulley's habeas claims, the Court will review the procedural history of the case in state court.

         In February of 2013, a Pomsett County jury convicted McCulley of raping a sixteen-year-old girl and sentenced him to thirty years' imprisonment.[1] Doc. 14-1, Tr. 64-65.

         McCulley appealed his conviction. On May 28, 2014, the Arkansas Court of Appeals affirmed. McCulley v. State, 2014 Ark.App. 330 ("McCulley")[2]

         On August 14, 2014, McCulley, with the assistance of counsel, filed a timely Rule 37 petition m the trial court.[3] He asserted nine claims of ineffective assistance of trial counsel. On January 7, 2015, the trial court held a hearing on the Rule 37 petition. Doc. 14-10, Tr. 66-96. On April 9, 2015, the trial court rejected all of McCulley's claims for postconviction relief. Doc. 14-10, pp. 45-58.

         McCulley appealed the denial of Rule 37 relief.[4] On May 17, 2017, the Arkansas Court of Appeals affirmed. See McCulley v. State, 2017 Ark.App. 313, at ("McCulley II) In Doc. 14-12.

         On April 16, 2018, McCulley, proceeding pro se, opened this federal action by filing a "Motion for Extension of Time to File 2254 Writ of Habeas Corpus-Doc. 1. In this filing, McCulley failed to identify any claims for federal habeas relief. Instead, he stated that he believed the § 2254 filing deadline was May 17, 2018, but he needed additional time to secure "necessary documentary evidence ... to perfect his §2254 petition." Id.

         On April 27, 2018, this Court entered an Order advising McCulley that, by filing a motion for extension of time, but asserting no habeas claims, he had not tolled the one-year limitations period provided for in 28 U.S.C. § 2244(d)(1).[5] Doc. 3 at 2. The Court advised McCulley that "he should attempt to file his habeas Petition before the limitations period expire[d]," but expressed no opinion as to the accuracy of McCulley's assertion that May 17, 2018 was the last date for him to timely file a §2254 Petition.[6] Doc. 3 at p. 3.

         On May 9, 2018, McCulley initiated the § 2254 Petition now before the Court.[7] Doc. 4. McCulley asserts twenty-one separate claims for habeas relief, which include claims of constitutionally ineffective assistance of counsel, trial error and prosecutonal misconduct.

         In Respondent's response, she argues that McCulley's habeas Petition should be dismissed because his claims are time-barred. Alternatively, Respondent argues that McCulley's claims are either procedurally defaulted or were reasonably adjudicated by the state court. Doc. 12. McCulley has filed a Reply. Doc. 17. Thus, the issues are joined and ready for disposition.

         Because all of McCulley's habeas claims are barred by the one-year statute of limitations contained in 28 U.S.C. § 2244(d)(1), the Court recommends that his habeas Petition be dismissed, with prejudice.

         II. Discussion

         A. McCulley's Habeas Claims Are Barred By The Applicable One Year Statute of Limitations

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a one-year statue of limitations governs a state prisoner's federal habeas corpus challenge to his conviction. 28 U.S.C. § 2244(d)(1). In most cases, including this one, the limitations period starts to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." § 2244(e)(1)(A).

         When a state prisoner fails to seek discretionary review of his conviction in the state's highest court, the judgment becomes "final" when the time for seeking such review expires. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012); see Johnson v. Hobbs, 678 F.3d 607, 610 (8th Cir. 2012) (in cases decided by the Arkansas Court of Appeals, a conviction becomes "final" when the prisoner can no longer file a petition for review with the Arkansas Supreme Court).

         After the Arkansas Court of Appeals decision on May 28, 2014 affirming his conviction, McCulley had eighteen calendar days to file a petition for review with the Arkansas Supreme Court. Ark. Sup. Ct. R. 2-4(a) (stating petitions for review must be filed within 18 calendar days of the date of the Arkansas Court of Appeals' decision). Because the eighteenth day fell on Sunday, June 15, 2014, the next day, Monday, June 16, 2014 was MeCulley's last day to file a timely petition for review. See Ark.R.App.P.-Crim.IV.

         The next day, June 17, 2014, McCulley's conviction was final and AEDPA's statute of limitations began running.[8] Absent "statutory tolling," McCulley had one year from that date to file his § 2254 habeas Petition.

         1. ...

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