Carroll v. Norris

Filing 26

RECOMMENDED DISPOSITION recommending that the District Court dismiss 2 Petitioner's petition for writ of habeas corpus with prejudice and deny 22 Petitioner's motion for judgment on the pleading and 25 motion to strike as moot. Objections to R&R due by 11/21/2008. Signed by Magistrate Judge Beth Deere on 11/7/08. (hph)

U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION C O N R A Y CARROLL A D C #110901 v. C A S E NO.: 5:08CV00192-WRW-BD RESPONDENT PETITIONER

L A R R Y NORRIS, Director, A r k a n s a s 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 William R. Wilson, Jr. 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 the factual or legal basis for th e objection. If the objection is to a factual finding, specifically identify that finding and th e evidence that supports your objection. An original and one copy of your objections m u s t be received in the office of the United States District Court Clerk no later than e lev e n (11) days from the date you receive the Recommended Disposition. A copy will b e furnished to the opposing party. Failure to file timely objections may result in waiver o f the right to appeal questions of fact. Mail 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 1

P e n d in g is Respondent's motion to dismiss the petition (docket entry # 16). Petitioner opposes the motion to dismiss and has filed a motion for judgment on the p le a d in g s (#22) and a motion to strike Respondent's response to the motion for judgment o n the pleadings (#25). For the reasons that follow, the Court recommends that the D is tric t Court grant the motion to dismiss and deny Petitioner's motion for judgment on th e pleadings and motion to strike as moot. II. B a c k gro u n d : O n April 10, 1997, Petitioner Conray Carroll entered a plea of guilty in Pulaski C o u n ty Circuit Court to the offense of rape. (#17 at p. 2) In a judgment and commitment o rd e r filed May 30, 1997, the Circuit Court sentenced Petitioner to sixty years in the A rka n sas Department of Correction ("ADC"). (#2 at p. 1) On June 26, 2002, Petitioner filed a motion to reopen the case (#17-3 at p. 2) and f o r forensic testing. (#17-3 at p. 2) On November 26, 2002, the Circuit Court denied P e titio n e r's motions. On May 12, 2006, Petitioner filed a petition for writ of habeas c o rp u s with the Circuit Court of Lincoln County which was denied on August 1, 2007. (#17-3 at p. 3) On July 8, 2008, Petitioner's request to transfer his case to United States D is tric t Court was denied by the Pulaski County Circuit Court. (#2 at p. 11) O n July 16, 2008, Petitioner filed this petition for writ of habeas corpus under 28 U .S .C . § 2254. (#2) Petitioner raises the following claims in his petition: (1) that he was c o n v ic te d with evidence obtained through an unlawful arrest; (2) that his conviction was

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u n c o n stitu tio n a l because the prosecution failed to disclose evidence which was favorable to him; (3) that he was prejudiced by ineffective assistance of trial counsel; and (4) that he w as denied a fair and impartial trial. (#2 at pp. 5-6) In his motion to dismiss (#16), Respondent asserts that Petitioner's claims are b a rre d by the applicable statute of limitations, and that neither statutory nor equitable to llin g are permitted. III. T h e Statute of Limitations T h e Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U .S .C . § 2254(d)(1), establishes a one-year statute of limitations during which a state p ris o 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 shall 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." In this case, Petitioner entered a plea of guilty to one count rape on April 10, 1997. (# 1 7 at p. 2) The judgment and commitment order sentencing Petitioner to 60 years in the A rk a n s a s ADC was filed on May 30, 1997. Id. at 2. Under Arkansas Rule of Criminal P r o c e d u r e 1(a), direct review from a plea of guilty or nolo contendere is barred unless a c o n d itio n a l plea has been allowed by Arkansas Rule of Criminal Procedure 24.3(b). Petitioner did not enter a conditional plea, so he was not entitled to any direct review of

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h is sentence. Calculating the date from May 30, 1997, the statute of limitations for P e titio n e r to file a federal habeas corpus petition expired on May 30, 1998. A. Statutory Tolling

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." However, a petition for Rule 37 post-conviction relief that is not filed in a timely manner is not a "properly filed application for state post-conviction o r other collateral review," and 28 U.S.C. § 2244(d)(2)'s tolling provision does not apply in that circumstance. Pace v. DiGuglielmo, 544 U.S. 408, 410-417 (2005); Walker v. N o rr is, 436 F.3d 1026, 1030 (8th Cir. 2006). Under Arkansas Rule of Criminal Procedure 37.2(c), a petitioner may claim postc o n v ic tio n relief within 90 days of the date of entry of judgment or "within ninety (90) d a ys of the date sentence was pronounced." Petitioner did not file any petition for postc o n v ic tio n relief until June 26, 2002, when he filed a motion with the trial court under A rk . Code Ann. § 16-112-201. This motion was filed after the ninety (90) days had e x p ire d and was denied on November 26, 2002. (#17 at p. 1) Petitioner is not entitled to s ta tu to ry tolling and his claims are barred by the statute of limitations unless he is entitled to equitable tolling.

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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, h o w e v e r, only when extraordinary circumstances beyond a prisoner's control make it im p o s s ib 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 is an "exceedingly narrow window of relief." Id. at 805. The E ig h th Circuit has held that pro se status, lack of legal knowledge or legal resources, and c o n f u sio n about or miscalculations of the limitations period are inadequate grounds to w a rra n t equitable tolling. See Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004). In his response to the motion to dismiss, Petitioner states that he is entitled to e q u itab le tolling because: (1) the prosecution did not bring formal charges against him u n til June 14, 1997, after Petitioner entered a plea of guilty; (2) the arrest warrant was not s ig n e d by a judge under oath; (3) his plea of guilty did not waive his jurisdictional c h a lle n g e to the conviction because his arrest was a fraud and unconstitutional; (4) the R e sp o n d e n t engaged in professional misconduct by not discussing in his motion to d is m is s Petitioner's writ of habeas corpus petitions that were filed with the State which w e re grounds for equitable tolling; and (5) Respondent failed to discuss prosecutorial m is c o n d u c t, attach copies of medical and scientific reports, and also failed to explain why

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th e Prosecutor did not file formal charges in a timely manner in his motion to dismiss. (#2 1 ) The Court has carefully reviewed and liberally construed the petition, Petitioner's re sp o n s e to the motion to dismiss, Petitioner's motion for a judgment on the pleadings a n d motion to strike. The Court cannot find anything in Petitioner's filings to justify eq u itab le tolling of the limitations period. Petitioner has not alleged extraordinary c irc u m sta n c e s that made it impossible for him to file a timely habeas petition. He knew, o r should have known through the exercise of due diligence, of all of the filing deadlines a n d procedures for filing his claims. While it is true that Petitioner did not waive ju ris d ic tio n a l claims by pleading guilty, he knew or should have known about the claims s in c e 1997 and failed to raise the claims with the Court in a timely manner. Accordingly, Petitioner's claim that he is entitled to direct review of his conviction is barred under Arkansas Rule of Appellate Procedure-Criminal 1(a) because of his guilty p le a , and his 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. § 2254(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 and deny Petitioner's motion for judgment on the p lea d in g s and motion to strike (#22 and #25) as moot.

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D A T E D this 7th day of November, 2008.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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