Maxwell v. Payne

Filing 11

FINDINGS AND RECOMMENDATION recommending 2 petition be dismissed as untimely; and the certificate of appealability be denied. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Patricia S. Harris on 06/05/2024. (llg)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
RODERICK MAXWELL
VS.

PETITIONER

No. 4:23-CV-01188 JM/PSH

DEXTER PAYNE, DIRECTOR,
Arkansas Division of Correction (“ADC”)

RESPONDENT

FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The following recommended disposition has been sent to United States
District Judge James Moody, Jr. 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
Petitioner Roderick Maxwell (“Maxwell”) seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Maxwell is in ADC custody as a result of his April

2022 guilty plea in Pulaski County to sexual assault in the fourth degree. Maxwell
was sentenced to 60 months’ probation. In July of 2022, a petition to revoke his
probation was filed. In March of 2023, Maxwell entered a negotiated plea of guilty
to violating the terms of his probation and was sentenced to thirty-six months’
imprisonment. Maxwell did not appeal his original conviction or the judgment
revoking his probation. He did file a motion to dismiss in Pulaski County Circuit
Court in June 2023.
On December 14, 2023, Maxwell filed this federal habeas corpus petition,
alleging as his sole claim for relief his actual and factual innocence. For supporting
facts he cites “no DNA evidence used” and “conviction based on hearsay
testimony.” Doc. No. 2, page 5. For relief, Maxwell seeks dismissal of the charges
and clearing of his record. Id. at 15. Maxwell is challenging the original conviction,
not the revocation proceeding.1
Statute of Limitations
Respondent Dexter Payne (“Payne”) contends the statute of limitations bars
consideration of these claims. Section 101 of 28 U.S.C. 2244 (as amended) imposes
a one-year period of limitation on petitions for writ of habeas corpus:
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Parole revocation does not reset the federal deadline for challenging the underlying
conviction and sentence. See White v. Minnesota, 2015 WL 5672984 (D. Minn. Sept. 23,
2015); Green v. Warden, 2012 WL 5463830 (E.D. La. Oct. 1, 2012); Romious v. Louisiana,
2016 WL 8309675 (E.D. La. Oct. 20, 2016); and Turner v. Kentucky State Reformatory,
2017 WL 3754644 (E.D. Ky. Aug. 9, 2017).

(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 retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.
Payne contends Maxwell should have filed his federal habeas petition on or
before June 3, 2023 in order to comply with the timeliness provisions of 28 U.S.C.
§ 2244. Specifically, Payne calculates Maxwell’s conviction became final thirty
days after the entry of judgment on May 4, 2022. Payne calculates Maxwell’s
federal habeas petition was filed more than six months after the limitations period
expired. Payne urges that Maxwell’s failure to act sooner is fatal to the petition.

The Court notified Maxwell of his opportunity to explain why his petition was
timely. Doc. No. 8. Maxwell, in response, faults two state court judges and two
public defenders for failing to inform him of his duty to file this petition within one
year after his conviction became final.
Initially, the Court finds that Payne is correct - Maxwell’s conviction became
final on June 3, 2022, thirty days after the entry of judgment based on Maxwell’s
guilty plea. See Camacho v. Hobbs, 774 F.3d 931, 935 (8th Cir. 2015); Ark. R. App.
P. – Crim. 2(a). A timely federal habeas petition should have been filed on or before
June 3, 2023. Since no postconviction petition was filed, the limitation period was
not statutorily tolled. See 28 U.S.C. § 2244(2). Maxwell filed a motion to dismiss
with the trial court on June 16, 2023. Doc. No. 7-5. This motion, even if construed
as a post-conviction petition, does not statutorily toll the limitation period because it
was filed after the period had elapsed. See Painter v. Iowa, 247 F.3d 1255, 1256 (8th
Cir. 2001). Thus, the limitations period expired, as Payne calculated, more than six
months prior to Maxwell’s December 2023 filing of his habeas corpus petition. This
does not end the analysis, however, since the failure to file a timely petition can be
excused under some circumstances:
Equitable tolling is appropriate where extraordinary circumstances
beyond a prisoner's control make it impossible to file a petition on time,
or where a defendant's conduct lulls the prisoner into inaction. Id. The
doctrine applies “only when some fault on the part of the defendant has
caused a plaintiff to be late in filing, or when other circumstances,
external to the plaintiff and not attributable to his actions, are

responsible for the delay.” Flanders v. Graves, 299 F.3d 974, 977 (8th
Cir.2002). Equitable tolling is an “exceedingly narrow window of
relief.” (Citation omitted).
Maghee v. Ault, 410 F.3d 473, 476 (8th Cir. 2005).
As previously noted, Maxwell claims ignorance of the law and faults the state
court judges and attorneys for failing to inform him of the time constraints as an
excuse for failing to file a timely habeas petition. This argument fails. “Prisoners
are not exempt from the principle that everyone is presumed to know the law and is
subject to the law whether or not he is actually aware of the particular law of which
he has run afoul. See e.g., Fisher v. Johnson, 174 F.3d 710, 714 (5th
Cir.1999) (noting that “ignorance of the law, even for an incarcerated pro
se petitioner, generally does not excuse prompt filing”), cert. denied, 531 U.S. 1164,
121 S.Ct. 1124, 148 L.Ed.2d 991 (2001).” Baker v. Norris, 321 F.3d 769, 772 (8th
Cir. 2003). Maxwell’s ignorance of the statute of limitations does not constitute an
extraordinary circumstance beyond his control that made it impossible for him to
file a timely habeas petition. And he does not allege conduct on the part of the state
that lulled him into inaction. Under these circumstances, there is no basis for
equitable tolling of the statute of limitations.
Maxwell also alleges “actual and factual innocence” to committing sexual
assault in the fourth degree. Doc. No. 2, page 5. This assertion does not equitably

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toll the limitation period. The Supreme Court, in McQuiggin v. Perkins, 569 U.S.
383 (2013), held that actual innocence, if proved, may serve as a gateway through
which the petitioner may pass to overcome the expiration of the statute of limitations.
The Supreme Court emphasized, however, that a tenable actual innocence gateway
plea is rare. To advance a tenable claim, Maxwell must meet the standard set forth
by the Supreme Court in an earlier case:
To be credible, such a claim requires petitioner to support his
allegations of constitutional error with new reliable evidence--whether
it be exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence--that was not presented at trial. Because
such evidence is obviously unavailable in the vast majority of cases,
claims of actual innocence are rarely successful.
Schlup v. Delo, 513 U.S. 298, 324 (1995).
The Court went on to set the standard now required of Maxwell; he "must
show that it is more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt." 513 U.S. at 327. This demanding
standard is difficult to meet, especially here, where Maxwell originally entered a
guilty plea. And he does not offer the “new reliable evidence” envisioned in Schlup
v. Delo, supra. As a result, Maxwell fails to establish actual innocence as a pathway
to defeating the limitations period.

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None of the reasons advanced by Maxwell equitably toll the limitations
period. Coupled with the absence of any statutory tolling, the limitation period
expired months before Maxwell filed this habeas corpus petition. Accordingly, the
Court recommends that the petition be dismissed as untimely.
Pursuant to 28 U.S.C. § 2253 and Rule 11 of the Rules Governing Section
2554 Cases in the United States District Court, the Court must determine whether to
issue a certificate of appealability in the final order. In § 2254 cases, a certificate of
appealability may issue only if the applicant has made a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(1)-(2). The Court finds no issue
on which petitioner has made a substantial showing of a denial of a constitutional
right. Thus, it is recommended that the certificate of appealability be denied.
IT IS SO RECOMMENDED this 5th day of June, 2024.
__________________________________ _
UNITED STATES MAGISTRATE JUDGE