United States District Court, E.D. Arkansas, Pine Bluff Division
LEE DALE LOFTON, JR. PETITIONER
v.
WENDY KELLEY, DIRECTOR, Arkansas Department of Correction RESPONDENT
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
...