United States District Court, E.D. Arkansas, Western Division
ORDER
I.
Background:
A
Poinsett County, Arkansas jury found petitioner Douglas
Edward Bitner guilty of first-degree murder, and on March 5,
1997, the trial court sentenced him to life in prison.
(#13-3) On March 31, 1997, Mr. Bitner's counsel filed a
notice of appeal and designation of the record; but Mr.
Bitner never lodged a record with the Arkansas Supreme Court
to perfect his appeal. (#13-4)
On
December 10, 2018, Mr. Bitner filed a petition for writ of
habeas corpus in this Court. (#1) Reading Mr. Bitner's
petition and objections to the Court's earlier
recommended disposition liberally, Mr. Bitner claims
ineffective assistance of trial counsel for failing to
cross-examine witnesses, failing to investigate, failing to
prepare for trial, and failing to perfect an appeal. (#1, #6)
Director
Kelley responds that Mr. Bitner's claims are barred by
the statute of limitations and are procedurally defaulted.
(#13) Because Mr. Bitner's habeas petition is barred by
the statute of limitations, the Court will not discuss
procedural default.[1]
II.
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 latter 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.
Mr.
Bitner's conviction became final when the time expired
for him to seek direct review by lodging a record with the
Arkansas Supreme Court. Because he filed his notice of appeal
on March 31, 1997, his time for lodging a record expired on
June 30, 1997. See Ark. R. App. P. - Crim. 4(b) (appellant
has 90 days after filing a notice of appeal to lodge the
record with the clerk); Ark. R. App. P. - Crim. 17 (when a
filing deadline falls on a Saturday, Sunday or legal holiday,
the deadline will be extended to the next business day).
Absent any applicable tolling, the one-year federal statute
of limitations expired on June 30, 1998, and his petition
(filed on December 10, 2018) was untimely.
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). “A properly filed application is one
that meets all of the state's procedural
requirements.” McMullan v. Roper, 599 F.3d
849, 853 (8th Cir. 2010). Further, the limitations period is
subject to equitable tolling if a petitioner can show that he
pursued his rights diligently, but that extraordinary
circumstances stood in his way and prevented a timely filing.
Holland v. Florida, 560 U.S. 631, 649 (2010)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)).
Neither
tolling provision applies in Mr. Bitner's case. On March
31, 1997, his counsel filed a notice of appeal, but Mr.
Bitner never lodged a record with the Arkansas Supreme Court
to perfect the appeal. Mr. Bitner did not file a motion to
file a belated appeal or pursue a petition for
post-conviction relief under Arkansas Rule of Criminal
Procedure 37.
Because
Mr. Bitner failed to comply with the applicable filing
requirements to perfect his appeal with the Arkansas Supreme
Court, “that is the end of the matter” for
purposes of determining whether the appeal was
“properly filed” under § 2244(d)(2); and the
limitations period was not tolled. Nelson v. Norris,
618 F.3d 886, 892 (8th Cir. 2010) (quoting Pace, 544
U.S. at 414).
The
statute of limitations is subject to equitable tolling in
cases where the petitioner can establish that he pursued his
rights diligently, but some extraordinary circumstance stood
in his way of filing a timely petition. Pace, 544
U.S. at 418. Here, Mr. Bitner has not specifically alleged an
extraordinary circumstance that prevented him from filing a
timely federal habeas petition. Typically, a petitioner's
pro se status, lack of legal knowledge or legal
resources, and confusion about, or miscalculations of, the
limitations period do not constitute extraordinary
circumstances warranting equitable tolling. See Johnson
v. Hobbs, 678 F.3d 607, 611 (8th Cir. 2012) (holding
that petitioner's pro se status or lack of
understanding of post-conviction rules does not justify
equitable tolling); see also Shoemate v. Norris, 390
F.3d 595, 598 (8th Cir. 2004).
Further,
Mr. Bitner cannot establish diligence, because he waited more
than 20 years after failing to perfect an appeal with the
Arkansas Supreme Court, to file his federal habeas petition.
See, Pace, 544 U.S. at 419 (petitioner who waited
five months after the judgment of conviction became final to
file his petition was not diligent). Mr. Bitner asserts that
his appointed attorney did not properly lodge his appeal, and
it appears from the Arkansas Supreme Court docket that is
true. (#13-6) But Mr. Bitner did not act diligently to seek
relief from the State court or from this Court. His lack of
diligence weighs against applying equitable tolling to excuse
his untimely petition.
B.
Act ...