United States District Court, E.D. Arkansas, Pine Bluff Division
Procedure for Filing Objections:
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.
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.
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,
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.
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.
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.
Statute of Limitations
instant petition is untimely. 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
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.
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 ...