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King v. Kelley

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

April 4, 2019

ELGIN G. KING ADC #088556 PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge D.P. Marshall, 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 this Recommendation. By not objecting, you may waive 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 Elgin King (“King”). Doc. 2. Before addressing King's habeas claim, the Court will review the procedural history of the case in state court.

         On May 6, 1998, a Pulaski County jury convicted King of first-degree murder and sentenced him, as a habitual offender, to sixty years in the Arkansas Department of Correction. Doc. 8-15 at 13.

         King appealed his conviction to the Arkansas Supreme Court, where he argued his conviction should be reversed based on the trial court: (1) denying his motion for directed verdict based on insufficiency of the evidence; (2) refusing his motion to declare a witness an accomplice; and (3) admitting evidence of appellant's gang involvement. King v. State, 338 Ark. 591 (1999).

         On September 23, 1999, the Arkansas Supreme Court affirmed King's conviction. In doing so, it ruled that: (1) King failed to preserve the issue of sufficiency of the evidence by not renewing his motion for directed verdict after the state's rebuttal testimony; (2) the law of the case precluded the Court from considering the issue of whether the witness in question was an accomplice; and (3) King opened the door to testimony that he was a gang member. Id.

         On November 18, 1999, King filed a pro se Rule 37 Petition in the Pulaski County Circuit Court, raising various ineffective assistance of trial counsel claims. Doc. 8-5 at 1. On November 14, 2000, the trial court entered an order denying Rule 37 relief.

         King appealed to the Arkansas Supreme Court. On February 14, 2002, the Court affirmed the trial court's denial of Rule 37 relief, and, on March 5, 2002, the Mandate issued. Doc. 8-7.

         On December 6, 2018, King initiated this habeas action, and raised a single claim: His 1998 first degree murder conviction was based on insufficient evidence. Doc. 2.

         On January 16, 2019, Respondent filed a Response, in which she argues that: (1) King's habeas claim is time-barred; (2) He has procedurally defaulted the claim; and (3) Under Ashcroft v. Iqbal, 556 U.S. 662, 677-680, 686 (2009), King's allegations are so vague and conclusory that he has not stated a claim for relief. Doc. 8. On February 25, 2019, King filed a Reply. Doc. 12.

         For the reasons explained below, the Court concludes that King's habeas claim is time-barred. Accordingly, the Court need not address Respondent's other grounds for the dismissal of this action.

         II. Discussion

         A. King's Habeas Claim Is Untimely.

         Under AEDPA, [1] a federal habeas petitioner must file his habeas Petition within one year of the date the state “judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). “When the State's highest court issues a decision on direct review, and review on certiorari is not sought, the judgment becomes final 90 days later, when the ...


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