Ellis v. Norris

Filing 11

RECOMMENDED DISPOSITION recommending that Petitioner's 2 Petition for Writ of Habeas Corpus be DENIED and DISMISSED WITH PREJUDICE. Objections to R&R due by 2/15/2008. Signed by Magistrate Judge Beth Deere on 2/1/2008. (smb)

E l l i s v. Norris

D o c . 11

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS PINE BLUFF DIVISION J E R R Y JAMES ELLIS A D C #078658 V. C A S E NO.: 5:07CV00148 SWW/BD RESPONDENT P E T IT IO N E R

L A R R Y NORRIS Director, Arkansas Department of Correction R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections:

T h e following recommended disposition has been sent to United States District Ju d g e Susan Webber Wright. Any party may serve and file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a sis for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from receipt of the findings and recommendations. A copy will be f u rn is h e d to the opposing party. Failure to file timely objections may result in waiver of th e right to appeal questions of fact. If you are objecting to the recommendation and also desire to submit new, d if f ere n t, or additional evidence, and to have a hearing for this purpose before the District J u d g e , you must, at the same time that you file your written objections, include the following:

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W h y the record made before the Magistrate Judge is inadequate. T h e details of any testimony desired to be introduced at the h e a rin g before the District Judge in the form of an offer of p ro o f , and a copy, or the original, of any documentary or o th e r non-testimonial evidence desired to be introduced at th e hearing before the District Judge.

F rom this submission, the District Judge will determine the necessity for an evidentiary h e a rin g , either before the Magistrate Judge or before the District Judge. M a il your objections and "Statement of Necessity" to: C lerk , United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. P r o c e d u r a l History: P e n d in g is Petitioner Jerry James Ellis's 28 U.S.C. § 2254 Petition for Writ of H a b e a s Corpus (docket entry #2). Respondent answered and stated that the petition is tim e -b a rre d because Petitioner's Rule 37 petition for post-conviction relief was untimely a n d , thus, did not toll the applicable statute of limitations (#5). Petitioner replied that his R u le 37 petition for post-conviction relief was, in fact, timely (#10). For the reasons that f o llo w , the Court recommends that this Petition for Writ of Habeas Corpus (#2) be D E N IE D and DISMISSED with prejudice. III. B a c k gro u n d : On March 10, 2005, Petitioner was convicted by a jury of rape, residential b u rglary, and terroristic threatening. He is serving a sentence of life plus fifty-five years 2

in the Arkansas Department of Correction. Petitioner appealed the conviction and the S u p re m e Court of Arkansas affirmed on January 12, 2006. Ellis v. State, 364 Ark. 538, 2 1 0 S.W.3d 71 (2006). The mandate issued on January 31, 2006. On April 14, 2006, Petitioner filed a Rule 37 petition for post-conviction relief w ith the trial court. On July 25, 2006, the trial court denied the petition as untimely. On S e p te m b e r 20, 2006, Petitioner filed a motion for reconsideration. The trial court denied th e motion for reconsideration on October 10, 2006. Petitioner then appealed the denial o f his motion for reconsideration and the Supreme Court of Arkansas dismissed the a p p e a l on March 22, 2007. Ellis v. State, CR 07-104, 2007 WL 853829 (Ark. March 22, 2 0 0 7 ). On June 18, 2007, Petitioner filed this Petition for Writ of Habeas Corpus under 2 8 U.S.C. § 2254 (#2). IV. D is c u s s io n : T itle 28 U.S.C. § 2244(d)(1) establishes a one year period during which a state p ris o n e r must commence a habeas corpus proceeding under 28 U.S.C. § 2254, or be b a rre d from filing such an action. 28 U.S.C. § 2244(d)(1). "Section 2244(d)(1)(A) is trig g e re d by either (i) the conclusion of all direct criminal appeals in the state system, f o llo w e d by the completion or denial of certiorari proceedings before the United States S u p r e m e Court; or (ii) if certiorari was not sought, then by the conclusion of all direct c rim in a l appeals in the state system followed by the expiration of the time allotted for f ilin g a petition for the writ." Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998).

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" T h e time during which a properly filed application for State post-conviction or other c o lla te ra l review with respect to the pertinent judgment or claim is pending shall not be c o u n te d toward any period of limitation under this section." 28 U.S.C. § 2 2 4 4 (d)(2 ) (em p h asis added). R e sp o n d e n t urges the Court to find the instant petition time-barred. Title 28 U .S .C . § 2244(d)(1)(A) states that the limitation period begins to run from the date the ju d g m e n t became final by the conclusion of direct review. A state court judgment b e c o m e s final under § 2244(d)(1)(A) upon the expiration of the time for filing a petition f o r writ of certiorari. Nichols v. Bowersox, 172 F.3d 1068 (8th Cir. 1999). "The time to f ile a petition for a writ of certiorari runs from the date of entry of the judgment or order s o u g h t to be reviewed, and not from the issuance date of the mandate (or its equivalent u n d e r local practice)." Sup. Ct. R. 13.3 (2005). The Supreme Court of Arkansas affirmed Petitioner's conviction on January 12, 2 0 0 6 . The ninety-day period in which to seek certiorari expired on April 16, 2006. Petitioner had one year, that is, until April 16, 2007, to file his habeas petition. Petitioner f ile d this action on June 18, 2007 (#2). As noted, a properly filed state post-conviction petition tolls the limitations period. 28 U.S.C. § 2244 (d)(2). A state post-conviction petition rejected by the state court as u n tim e ly, however, is not "properly filed." Allen v. Siebert, __ U.S. __, 128 S.Ct. 2, 4 (2 0 0 7 ). Petitioner argues in his reply that he provided his post-conviction petition for

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f ilin g on March 31, 2006, but that the Pulaski County Circuit Court Clerk negligently f a ile d to file his petition until April 14, 2006 (#10). The trial court in this case determined that the post-conviction petition was u n tim e ly. The state court's determination of factual issues is presumed correct. 28 U .S .C . § 2254(e)(1). The record does not contain evidence sufficient to rebut this p re su m p tio n . The Arkansas Supreme Court, though unnecessary for the determination of P e titio n e r' s appeal, agreed that the post-conviction petition was untimely. Ellis v. State, C R 07-104, 2007 WL 853829 (Ark. March 22, 2007). When the state supreme court rules th a t a post-conviction petition is untimely, "`that [is] the end of the matter' for purposes o f § 2244(d)(2)." Pace v. DiGuglielmo, 544 U.S. 408, 414 125 S.Ct. 1807 (2005) (q u o tin g Carey v. Saffold, 536 U.S. 214, 226, 122 S.Ct. 2134, 2141 (2002)). Accordingly, Petitioner's Rule 37 petition for post-conviction relief did not toll the statute o f limitations. V. C o n clu sion : The instant petition is time-barred. Petitioner's Rule 37 petition for postc o n v ic tio n relief was untimely under state law. Thus, the post-conviction petition did not to ll the statute of limitations applicable to his federal habeas corpus petition. Accordingly, the Court recommends that this Petition for Writ of Habeas Corpus (#2) be D E N IE D and DISMISSED with prejudice.

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D A T E D this 1st day of February, 2008.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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