Bitner v. Kelley

          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 ...