Lofton v. Kelly

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following recommended disposition has been sent to United States District Judge Billy Roy Wilson. 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.

         DISPOSITION

         Lee Dale Lofton, Jr. (“Lofton”) seeks a writ of habeas corpus pursuant to 28 U.S.C. §2254. Lofton is currently in the custody of the Arkansas Department of Correction (ADC). In 2008, Lofton entered guilty pleas in Pulaski County Circuit Court to two counts of aggravated robbery, two counts of kidnapping, theft of property, two counts of fraudulent use of a credit card, and criminal attempt to commit capital murder. He was sentenced to 40 years' imprisonment. Lofton sought Rule 37 relief in state court, but the petition was dismissed as untimely.^[1] On appeal, the Arkansas Supreme Court dismissed for lack of appellate jurisdiction.

         On February 5, 2019, Lofton filed this federal habeas corpus petition, alleging the following claims for relief:

         1. He was denied the effective assistance of counsel in connection with the entry of the guilty pleas; and

         2. He should be declared eligible for parole under the provisions of the Fair Sentencing of Minors Act (“FSMA”), enacted on March 27, 2018.

         Respondent Wendy Kelley (“Kelley”) opposes Lofton's request. She contends that the statute of limitations bars consideration of these claims, the ineffective assistance of counsel claims are procedurally barred, and the FSMA claim is not cognizable in a federal habeas corpus action. By previous Order, Lofton was notified of his opportunity to explain why his petition is not subject to dismissal as untimely or procedurally barred. Docket entry no. 17. Lofton filed a responsive pleading in response to the Court's Order. Docket entry no. 18. For the reasons stated below, the undersigned recommends that the petition for writ of habeas corpus be dismissed and the relief requested be denied because the petition is time-barred.

         Statute of Limitations

         Section 101 of 28 U.S.C. § 2244 (as amended) imposes a one year period of limitations on petitions for writ of habeas corpus:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...