Smith v. Norris

Filing 14

RECOMMENDED DISPOSITION recommending that the District Court dismiss 2 Petitioner's petition for writ of habeas corpus and deny, as moot, 6 , 8 Petitioner's motions for voluntary dismissal and 13 motion for order. Objections to R&R due by 10/23/2008. Signed by Magistrate Judge Beth Deere on 10/08/08. (hph)

U N I T E D STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION K I A R A SMITH A D C #107225 v. CASE NO.: 5:08CV00232-JLH-BD P E T IT IO N E R

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:

RESPONDENT

T h e following recommended disposition has been sent to Chief United States D istric 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 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 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. 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 1

Pending is Petitioner's motions for voluntary dismissal (docket entries #6 and #8) a n d his motion for order (#13). Respondent opposes the motion for voluntary dismissal a n d argues the Court should dismiss the petition with prejudice. For the reasons that f o llo w , the Court recommends that the District Court dismiss the petition with prejudice a n d deny Petitioner's pending motions as moot. II. B a c k gro u n d : O n July 8, 1996, Petitioner Kiara Smith entered a plea of guilty in Mississippi C o u n ty Circuit Court to a charge of robbery. In a judgment and commitment order e n te re d on the same day, the Circuit Court sentenced Petitioner to twenty years in prison. (#5-2 at p. 1) According to the judgment and commitment order, Petitioner was to serve ten years of his sentence, and the other ten years were to be suspended. (#5-2 at p.1) On August 15, 2006, the Circuit Court found Petitioner guilty of violating the te rm s and conditions of his suspended sentence and entered a judgment and commitment o rd e r sentencing him to 48 months in the Arkansas Department of Correction ("ADC"). (#5-3) Petitioner did not file a direct appeal from the judgment. O n May 15, 2007, Petitioner filed a petition to correct illegal sentence with the C irc u it Court. On September 20, 2007, the Circuit Court denied the Petition. On October 3 0 , 2007, Petitioner filed a habeas petition with the Circuit Court. The Circuit Court d e n ie d the habeas petition on November 7, 2007. On December 3, 2007, Petitioner filed a petition for writ of error coram nobis in the Circuit Court which was denied on 2

D e c em b e r 14, 2007. On May 27, 2008, Petitioner filed a second petition to correct illegal s e n te n c e. The second petition was denied by the Circuit Court on August 21, 2008. O n August 19, 2008, Petitioner filed this petition for writ of habeas corpus under 2 8 U.S.C. § 2254. (#2) He raises several claims in his habeas petition. He claims: (1) his c o n v i c tio n was obtained by an unlawful guilty plea; (2) the State failed to disclose f a v o ra b le evidence to the defense; (3) he had ineffective assistance of counsel; and (4) he w as arrested unlawfully. (#2 at pp. 4-5) In his response to the petition (#5) and response in opposition to the motion for v o lu n ta ry dismissal (#7), Respondent asserts that Petitioner's claims are barred by the a p p lic a b le statute of limitations. 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), established 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 was found guilty of violating the terms and conditions of his s u s p e n d e d sentence at a hearing held August 15, 2006. (#5-4 at p. 8) The Judge entered a judgment and commitment order the same day sentencing Petitioner to serve 48 months

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in the ADC. (#5-3) Under Arkansas Rule of Appellate Procedure 4, Petitioner could h a v e brought a direct appeal up to thirty days after the Circuit Court filed its judgment a n d commitment order. Thus, Petitioner's time for filing a direct appeal expired on S e p te m b e r 14, 2006, and the statute of limitations began to run on September 15, 2006. Accordingly, absent any tolling of the limitations period, Petitioner's time for filing his h a b e as petition expired on September 14, 2007, over eleven months before Petitioner f iled his petition. Petitioner's claims are barred by the statute of limitations unless he is e n title d to statutory or equitable tolling. A. S ta tu to r y 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); Lewis v. Norris, 454 F.3d 778, 781 (8th Cir. 2 0 0 6 ). As stated above, Petitioner had until September 14, 2006, to file a direct appeal of the judgment but chose not to appeal. Under Arkansas Rule of Criminal Procedure

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3 7 .2 (c ), Petitioner had until November 14, 2006, to file a post-conviction petition with the trial court, and he admits he did not meet that deadline. (#10 at p. 1) Petitioner filed his f irst post-conviction petition, a petition to correct an illegal sentence, with the Circuit C o u rt on May 15, 2007, several months after the time for filing a Rule 37 petition had e x p ire d . The petition was denied by the Circuit Court on September 20, 2007. Petitioner filed a state habeas petition on October 30, 2007, which the Circuit C o u rt denied on November 7, 2007, and a petition for writ of error coram nobis with the C irc u it Court on December 3, 2007, which was denied on December 14, 2007. Assuming, without deciding, that these petitions were "properly filed" for purposes of to llin g the statute of limitations, the statute of limitations expired, at the latest, on F e b ru a ry 11, 2008. Petitioner did not file his petition until August, 2008, six months after th e statute of limitations expired. B. E q u i ta b le Tolling

The statute of limitations set forth in 28 U.S.C. § 2244(d)(1) is also subject to e q u ita b le tolling. Jihad v. Hvass, 267 F.3d 803, 805-06 (8th Cir. 2001). Equitable tolling is proper 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

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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 motion for order (#13), Petitioner claims ineffective assistance of counsel a n d judicial bias, during the hearing on August 15, 2006, led to his conviction for v io la tin g the terms of his suspended sentence when he was actually innocent. Petitioner d o e s not allege, however, that ineffective assistance of counsel or judicial bias prevented h im from filing his habeas petition on time. (#1 at p. 13) Petitioner does not offer any explanation for his delay. T h e Court has carefully reviewed and liberally construed the petition, Petitioner's m o tio n s for voluntary dismissal, his reply to the response to his motions for voluntary d is m is s a l, and his motion for order. The Court cannot find anything in Petitioner's filings to justify equitable tolling of the limitations period. Petitioner knew, or should have k n o w n through the exercise of due diligence, of all of the filing deadlines and of all of his c la im s . Accordingly, Petitioner's claims were filed outside the one-year limitations period e s ta b lis h e d by 28 U.S.C. § 2244(d) and are barred by the statute of limitations. 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 motions for voluntary

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d ism iss a l (#6 and #8) and his motion for order (#13) as moot. D A T E D this 8th day of October, 2008.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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