Whitaker v. Walker et al

Filing 26

ORDER dismissing with prejudice 2 Petition for Writ of Habeas Corpus filed by Gerald Whitaker. Signed by Magistrate Judge Beth Deere on 9/13/2010. (jct)

Whitaker v. Hobbs

Doc. 26

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS J O N E S B O R O DIVISION G E R A L D WHITAKER, A D C # 141195 V. CASE NO. 3:10CV00115-BD R ESPON D EN T PLAINTIFF

R A Y HOBBS, Director, A r k a n s a s Department of Correction

ORDER P e n d in g before the Court is Petitioner Gerald Whitaker's petition for writ of h a b e a s corpus brought pro se under 28 U.S.C. § 2254. The parties have consented to this C o u rt's jurisdiction in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil P ro c e d u re 73. (#18) For the reasons set forth below, the petition is dismissed with p re ju d ic e . I. B ackground O n March 4, 2008, Petitioner pled guilty to one count of manslaughter and one c o u n t of abuse of an adult in the Circuit Court of Mississippi County, Arkansas. (Docket E n try #24-3 at p. 1) The court sentenced Petitioner to eighty-four months in the Arkansas D e p a rtm e n t of Correction ("ADC") for manslaughter and imposed a suspended sentence o f seventy-two months for abuse of an adult. (#24-3) P e titio n e r filed a pro se petition for a writ of error coram nobis in the Mississippi C o u n ty Circuit Court on January 16, 2009. (#24-6) In an order filed February 3, 2009, the court denied the petition because it was unsigned, undated, improperly notarized,

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lacked a certificate of service, and because there was no application to proceed in forma p a u p e ris . On May 13, 2010, Petitioner filed a second petition for writ of error coram nobis in the Mississippi County Circuit Court. (#24-8) The second petition contains the same fa c tu a l allegations as the first petition and is still pending in the trial court. (#24 at p.5) P e titio n e r has not filed a petition for post-conviction relief under Rule 37 of the Arkansas R u le s of Criminal Procedure. On June 2, 2010, Petitioner filed the instant petition for writ of habeas corpus. In h is petition, Petitioner claims: (1) trial counsel was reluctant to go to trial and pressured h im into a guilty plea; (2) he was heavily medicated on the day he appeared before the tria l court to enter his plea of guilty; (3) the guilty plea was not supported by adequate fa c ts ; (4) there is insufficient evidence to support the plea because the prosecutor did not e s ta b lis h that he was his brother's legal guardian; and (5) the trial court violated his due p ro c e s s rights by denying his request to fire the public defender serving as his attorney. (#2 at pp. 4-8) R e sp o n d e n t contends all of Petitioner's claims are barred by the statute of lim ita tio n s set forth in 28 U.S.C. § 2244(d) and are procedurally barred. (#24) Petitioner re p lie d to the response claiming his plea was not supported by sufficient facts. For the re a s o n s set forth below, Petitioner's petition is dismissed with prejudice.

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II.

T h e Statute of Limitations T h e Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28

U .S .C . § 2244(d)(1), establishes a one-year limitations period during which a state p riso n e r may commence a habeas corpus proceeding under 28 U.S.C. § 2254. The statute p ro v id e s that the limitation period begins to run from, "the date on which the judgment b e c a m e final by the conclusion of direct review or the expiration of the time limit for s e e k in g such review." 28 U.S.C. § 2244(d)(1)(A). In this case, Petitioner entered a plea of guilty that precluded him from filing a d ire c t appeal. See ARK. R. APP. P. CRIM. 1(a). Consequently, Petitioner's conviction b e c a m e final on the date the trial court entered the judgment and commitment order, M a rc h 4, 2008, and the statute of limitations expired on March 5, 2009. Petitioner did not file this habeas petition until June 2, 2010, more than a year after the statute of limitations e x p ire d . Accordingly, Petitioner's claims are barred by the statute of limitations unless th e statute of limitations can be tolled. A. Statutory Tolling

T itle 28 U.S.C. § 2244(d)(2) provides that "[t]he time during which a properly file d application for State post-conviction or other collateral review with respect to the p e rtin e n t judgment or claim is pending shall not be counted toward any period of lim ita tio n under this section." A state post-conviction application is "properly filed" w h e n "its delivery and acceptance are in compliance with the applicable laws and rules g o v e rn in g filings," including "the form of the document, the time limits upon its delivery, 3

the court and office in which it must be lodged, and the requisite filing fee." Artuz v. B e n n e tt, 531 U.S. 4, 8, 121 S.Ct. 361, 364 (2000). A petition for post-conviction relief th a t does not include a properly notarized verification is not, however, a "properly filed a p p lic a tio n for state post-conviction or other collateral review." Walker v. Norris, 436 F .3 d 1026, 1030 (8th Cir. 2006); see also Nelson v. Norris, ___ F.3d ___, 2010 WL 3 3 4 1 2 3 0 at *5 (8th Cir. Aug. 26, 2010)(holding that under Walker, "if a state court finds th a t a motion fails to comply with filing requirements, that motion is not `properly filed,' re g a rd le s s of whether those filing requirements are firmly established") (citations o m itte d ). In this case, Petitioner filed a petition for a writ of error coram nobis with the trial c o u rt on January 16, 2009. (#24-6) In an order filed February 3, 2009, the trial court d e n ie d the petition because it was improperly filed. (#24-7 at p. 1) The petition was u n s ig n e d , undated, improperly notarized, and failed to include a certificate of service. (#24-7 at p. 1) Thus, the petition was not properly filed, and Petitioner is not entitled to a n y statutory tolling during the time his first petition for writ of error coram nobis was p e n d in g in the state court.1 O n May 13, 2010, Petitioner filed a second petition for writ of error coram nobis in the Mississippi County Circuit Court. (#24-8) The second petition does not toll the

Even if Petitioner were entitled to tolling from January 16, 2009, when he filed th e writ of error coram nobis until the court's order dismissing relief on February 3, 2009, h is petition would still be untimely under the applicable statute of limitations. 4

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statute of limitations, however, because it was not filed until after March 5, 2009, when th e statute of limitations expired. Cross-Bey v. Gammon, 322 F.3d 1012, 1014 (8th Cir. 2 0 0 3 )(th e statute of limitations is not tolled during the pendency of a proceeding c o m m e n c e d after the limitations period has already expired). Accordingly, Petitioner's c la im s are barred by the statute of limitations unless he is entitled to equitable tolling. B. Equitable Tolling

T h e statute of limitations set forth in 28 U.S.C. § 2244(d)(1) is subject to equitable to llin g in appropriate cases. Holland v. Florida, --- U.S. ----, 130 S.Ct. 2549, 2560 (2 0 1 0 ). "[A] `petitioner' is `entitled to equitable tolling' only if he shows `(1) that he has b e e n pursuing his rights diligently, and (2) that some extraordinary circumstance stood in h is way' and prevented timely filing." Id. at 2562 (quoting Pace v. Diguglielmo, 544 U .S . 408, 418 (2005)). E q u ita b le tolling affords an "exceedingly narrow window of relief." Id. (quoting J ih a d v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001)). The Eighth Circuit has held that pro s e status, lack of legal knowledge or legal resources, and confusion about, or m isc a lc u la tio n s of, the limitations period are inadequate grounds to warrant equitable to llin g . See Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004). In this case, Petitioner failed to pursue his rights diligently. The trial court denied h is petition for writ of error coram nobis on February 3, 2009. At that point, Petitioner h a d a full month, until March 5, 2009 to file a habeas petition, but he did not file the in s ta n t petition until over a year later, on June 2, 2010. See Nelson v. Norris, __ F.3d __, 5

2010 WL 3341230 at *6 (8th Cir. Aug. 26, 2010)(holding that Petitioner who waited for n in e months after the Arkansas Supreme Court denied rehearing in his case to file a h a b e a s petition had not diligently pursued his rights). In his reply to the response, Petitioner again claims that there was insufficient e v id e n c e to support his guilty plea. (#25) Petitioner has not made any showing, however, th a t an extraordinary circumstance prevented the timely filing of a habeas petition. Accordingly, Petitioner is not entitled to equitable tolling.2 III. C o n c lu s io n P e titio n e r's claims for habeas relief are barred by the one-year limitations period e s ta b lis h e d by 28 U.S.C. § 2244(d). Accordingly, Gerald Whitaker's petition for writ of h a b e a s corpus (#2) is DISMISSED with prejudice. D A T E D this 13th day of September, 2010.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

Having concluded that Petitioner's claims are barred by the statute of limitations, th e Court will not address Respondent's claim that Petitioner's claims are also p ro c e d u ra lly defaulted. 6

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