Posey v. Norris
REPORT AND RECOMMENDATIONS that 2 Petition for Writ of Habeas Corpus filed by Bobby Lee Posey be dismissed with prejudice. Objections to R&R due by 9/2/2009. Signed by Magistrate Judge Beth Deere on 8/19/09. (bkp)
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION B O B B Y LEE POSEY A D C #113508 v. C A S E NO.: 5:08CV00129 JLH-BD PETITIONER
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 Chief United States D is tric t Judge J. Leon Holmes. Any party may 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 s is 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 the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact.
Mail your objections and "Statement of Necessity" to: Clerk, United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B ackground O n February 25, 1997, Petitioner pled guilty to robbery in Circuit Court of C ritte n d e n County, Arkansas, and was sentenced to ten years' probation. (#12-3) On O c to b e r 6, 2003, the State filed a petition to revoke Petitioner's probation. (#12-4 at p. 3 9 ) On February 25, 2004, after a revocation hearing, the Crittenden County Circuit C o u rt found that Petitioner had violated the terms of his probation by consorting with o th e rs in the commission of a crime and breaking into an automobile. The court revoked P e titio n e r's previously imposed probationary sentence and sentenced Petitioner to ten ye a rs ' imprisonment in the Arkansas Department of Correction ("ADC"). (#12-4 at pp. 3 6 -3 7 ) On March 11, 2004, Petitioner filed a notice of appeal with the Arkansas Court of A p p e a ls . On May 18, 2005, the Court of Appeals affirmed the Petitioner's revocation, a n d on June 7, 2005, the Court issued a mandate returning jurisdiction to the trial court. (# 1 2 -6 , #12-7) Posey v. State, No. CACR 04-610, 2005 WL 1168401, at *1 (May 18, 2 0 0 5 ). O n December 10, 2004, Petitioner filed a habeas corpus petition, and on February 1 4 , 2005, he filed a petition for writ of error coram nobis in the Circuit Court of 2
Crittenden County. (#12-8, #12-9) On February 18, 2005, Petitioner filed a motion to d is m is s both of these petitions because his appeal was still pending in the Arkansas Court o f Appeals. (#12-10) On May 27, 2005, after the Court of Appeals had issued its decision but before the C le rk of the Court had issued a mandate, Petitioner filed a petition with the trial court u n d e r Rule 37 of the Arkansas Rules of Criminal Procedure. (#12-13) The trial court h e ld a hearing on the Rule 37 petition on December 16, 2005, and entered an order on F e b ru a ry 16, 2006, denying relief. (#12-14) Petitioner appealed the denial of relief on th e Rule 37 petition, and on June 29, 2009, the Arkansas Supreme Court dismissed the a p p e a l. Posey v. State, No. CR 06-518, 2006 WL 1781499, at *1 (June 29, 2006). The C o u rt held that Petitioner's Rule 37 petition was untimely filed because it was filed b e f o re the mandate was issued. Rule 37.1 requires that a petition be filed after the m a n d a te is issued in a case. Id. On March 1, 2007, Petitioner filed a Motion to Vacate Conviction and Sentence in th e Crittenden County Circuit Court. In the motion, Petitioner claimed: (1) ineffective a s s is ta n c e of counsel; (2) the trial court erred by failing to appoint new counsel; and (3) th e trial court and counsel erred in knowingly accepting perjured testimony. (#12-16 at p p . 7-9) The court denied the motion to vacate on October 26, 2007 as an attempt to re h a s h claims that were made or that could have been made in his Rule 37 petition. (#1217)
Petitioner filed the instant habeas petition seeking relief under 28 U.S.C. § 2254 on M a y 5, 2008. III. 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 statute of limitations during which a state p riso n e r must commence a habeas corpus proceeding under 28 U.S.C. § 2254. The s ta tu te provides that the limitation period begins to run from, "(A) the date on which the ju d g m e n t became final by the conclusion of direct review or the expiration of the time lim it for seeking such review." 28 U.S.C. § 2244(d)(1)(A). In this case, Petitioner's probation was revoked on February 25, 2004. The A rk a n sa s Court of Appeals affirmed the probation revocation on May 18, 2005, but did n o t issue a mandate until June 7, 2005. Petitioner did not appeal the Arkansas Court of A p p e a ls ' decision to the Arkansas Supreme Court. Calculating the date from June 7, 2 0 0 5 , the statute of limitations for Petitioner to file a federal habeas corpus petition e x p ire d on June 7, 2006.1 Petitioner filed the current petition on May 5, 2008, well after th e expiration date.
B e c a u se Petitioner did not appeal the Arkansas Court of Appeals' decision to the A rk a n sa s Supreme Court, the expiration of time for seeking review does not include the 9 0 -d a y period for filing for a writ of certiorari with the United States Supreme Court. Riddle v. Kemna, 523 F.3d 850, 855 (8th Cir. 2008). 4
T itle 28 U.S.C. § 2244(d)(2), provides that "[t]he time during which a properly f ile 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 petition for Rule 37 post-conviction relief that is u n tim e ly filed is not, however, a "properly filed application for state post-conviction or o th e r collateral review," and 28 U.S.C. § 2244(d)(2)'s tolling provision does not apply in th a t circumstance. Walker v. Norris, 436 F.3d 1026, 1030 (8th Cir. 2006); Pace v. D iG u g lie lm o , 544 U.S. 408, 410-417 (2005). Under Arkansas Rule of Criminal Procedure 37.2(c), if an appeal of the judgment is taken, a petitioner may file a claim for post-conviction relief "within sixty (60) days of th e date the mandate was issued by the appellate court." In this case, Petitioner im p ro p e rly filed his claim for post-conviction relief before the mandate was issued, and c o n s e q u e n tly the Arkansas Supreme Court held that the trial court lacked jurisdiction to h e a r Petitioner's Rule 37 petition. Accordingly, Petitioner is not entitled to statutory to llin g . His claims are barred by the statute of limitations unless he is entitled to equitable to llin g . 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 . Jihad v. Hvass, 267 F.3d 803, 805-06 (8th Cir. 2001). Equitable tolling is proper,
however, only when extraordinary circumstances beyond a prisoner's control make it im p o s sib le to file a petition on time, or when the conduct of the respondent has lulled the p la in tif f into inaction. Id. (citing Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2 0 0 0 )). Equitable tolling affords an "exceedingly narrow window of relief." Id. at 805. The Eighth Circuit has held that pro se status, lack of legal knowledge or legal resources, a n d confusion about, or miscalculations of, the limitations period are inadequate grounds to warrant equitable tolling. See Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004). The Court has carefully reviewed and liberally construed the petition but cannot f in d anything in Petitioner's filing to justify equitable tolling. Petitioner did not reply to th e response or allege in his petition that he is entitled to equitable tolling. Petitioner has n o t alleged extraordinary circumstances that made it impossible for him to file a timely h a b e a s petition. He knew, or should have known through the exercise of due diligence, o f all of the filing deadlines and procedures for filing his claims. Accordingly, 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). IV. C o n c lu s io n T h e Court recommends that the District Court dismiss Petitioner's petition for writ o f habeas corpus (#2) with prejudice.
DATED this 19th day of August, 2009.
____________________________________ U N IT E D STATES MAGISTRATE JUDGE
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