England v. Kelley

          RECOMMENDED DISPOSITION

         I. Procedure for Filing Objections:

         This Recommended Disposition (Recommendation) has been sent to Judge Billy Roy Wilson. Any party to this suit may file written objections. To be considered, objections must be filed with the Clerk of Court within 14 days. Objections should be specific and should include the factual or legal basis for the objection.

         If parties do not object, they may lose the right to appeal questions of fact. And, if no objections are filed, Judge Wilson can adopt this Recommendation without independently reviewing the record.

         II. Background:

         Following a jury trial on May 8, 2015, in Pulaski County, Arkansas, Petitioner James England was found guilty of one count of rape and two counts of incest and received an aggregate sentence of 15 years' imprisonment in the Arkansas Department of Correction. (Docket Entry #8-2 at 168-70) Mr. England appealed, and his conviction was affirmed by the Arkansas Court of Appeals on April 20, 2016. England v. State, 2016 Ark.App. 211 (#8-5). He neither sought to have the decision reconsidered nor to have the Arkansas Supreme Court review the decision. England v. State, CR-15-696.^[1]

         With counsel, Mr. England timely petitioned the circuit court on July 7, 2016, for post-conviction relief under Ark. R. Crim. P. 37.1, raising numerous claims of ineffective assistance of counsel. (#8-8 at 173-82) The same day, he moved to file an amended and enlarged petition. (#8-8 at 184-85) The motion was granted, and the amended petition was filed on October 17, 2016. (#8-6, #8-8 at 186-210) On March, 29, 2017, the circuit court denied the petition for post-conviction relief. (#8-7)

         Still represented by counsel, Mr. England timely appealed the denial of his petition to the Arkansas Court of Appeals. On February 21, 2018, the Court affirmed the circuit court's denial of post-conviction relief. England v. State, 2018 Ark.App. 137 (#8-11). Mr. England petitioned the Arkansas Supreme Court to review the decision; however, that petition was denied on April 19, 2018. See England v. State, CR-18-232.^[2]

         Mr. England initiated the instant petition on April 17, 2019, arguing that his trial counsel acted ineffectively when he failed to procure and introduce cellphone records into evidence at trial. (#1) He believes the phone records would have created doubt in the minds of jurors with regard to one victim's credibility. Respondent contends that Mr. England's claims are barred by the applicable statute of limitations or are, in any event, meritless.

         III. Discussion:

         A. Statute of Limitations

         The instant petition is untimely.^[3] The Antiterrorism and Effective Death Penalty Act of 1996 establishes a one-year limitations period for a state prisoner to file a federal habeas corpus petition under 28 U.S.C. § 2254. 28 U.S.C. § 2244(d)(1). The triggering date in this case was “the date on which the 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 a criminal defendant fails to seek discretionary review of his criminal conviction in the state's highest court, his judgment becomes final when the time for seeking such review expires. Gonzalez v. Thaler, 565 U.S. 134, 154 (2012).

         Here, Mr. England had 18 days from the April 20, 2018 decision of the Arkansas Court of Appeals, that is until May 8, 2016, 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 decision by the Arkansas Court of Appeals). Because May 8th fell on a Sunday, however, the deadline rolled to May 9, 2016. See Ark. R. App. P.-Crim. 17. Therefore, the federal one-year limitation period began to run no later than May 10, 2016. Mr. England did not file his petition until April 17, 2019. Accordingly, there can be no dispute that Mr. England's petition is barred by the statute of limitations. 28 U.S.C. § 2244(d)(1)(A).

         B. Tolling

         The federal habeas statute provides for tolling during the pendency of a “properly filed application for State post-conviction or other collateral relief.” 28 U.S.C. § 2244(d)(2). Furthermore, while the limitations period in §2244(d)(1) is subject to equitable tolling, Holland v. Florida, 560 U.S. 631, 645 (2010), to benefit from that relief, a petitioner must show that he pursued his rights diligently but that some ...