United States District Court, E.D. Arkansas, Pine Bluff Division
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.
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.
February of 2013, a Pomsett County jury convicted McCulley of
raping a sixteen-year-old girl and sentenced him to thirty
years' imprisonment. Doc. 14-1, Tr. 64-65.
appealed his conviction. On May 28, 2014, the Arkansas Court
of Appeals affirmed. McCulley v. State, 2014
Ark.App. 330 ("McCulley")
August 14, 2014, McCulley, with the assistance of counsel,
filed a timely Rule 37 petition m the trial
court. 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.
appealed the denial of Rule 37 relief. On May 17, 2017,
the Arkansas Court of Appeals affirmed. See McCulley v.
State, 2017 Ark.App. 313, at ("McCulley II) In
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
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). 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. Doc. 3 at p. 3.
9, 2018, McCulley initiated the § 2254 Petition now
before the Court. 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.
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.
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.
McCulley's Habeas Claims Are Barred By The Applicable One
Year Statute of Limitations
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).
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).
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
next day, June 17, 2014, McCulley's conviction was final
and AEDPA's statute of limitations began
running. Absent "statutory tolling,"
McCulley had one year from that date to file his § 2254