Norcutt v. Norris
ORDER DISMISSING the case with prejudice because the petition is time-barred. Signed by Magistrate Judge Jerome T. Kearney on 9/27/11. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
RONALD EUGENE NORCUTT
Case No. 5:09CV00401 JTK
Director, Arkansas Department of Correction
Now before the Court is a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 by Ronald Eugene Norcutt, an inmate in the Arkansas Department of Correction. On
November 14, 2008, Petitioner entered a negotiated guilty plea to one count of rape in
violation of Ark. Code. Ann. § 5-14-103, for which he received 120 months’ imprisonment.
(Doc. No. 6, Respondent’s Exhibit A, H) In his federal habeas petition, filed December 30,
2009, he argues that his guilty plea was coerced, that his original charge was illegally
enhanced, that the State’s charging instrument was defective, and that he received ineffective
assistance of counsel. (Doc. No. 2 at 5-8, 10) Petitioner raises these arguments for the first
time in his federal habeas petition and more than a year after November 14, 2008, the date
his judgment became final. Based on the following, Petitioner’s claims are time-barred and
therefore excluded from review.
Substituted for former Director Larry Norris pursuant to Fed. R. Civ. P. 25(d).
The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year
statute of limitations for filing federal habeas corpus petitions. See 28 U.S.C. § 2244(d)(1).
The limitation period begins to run on the date “the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review[.]” Id. at §
2244(d)(1)(A). Arkansas bars direct review of unconditional guilty pleas. See Ark. R. App.
P.-Crim. 1(a) and Ark. R. Crim. P. 24.3(b) (a defendant who enters an unconditional guilty
plea possesses no direct appeal rights). Petitioner’s judgment became final, therefore, on
November 14, 2008, when the Perry County Circuit Court entered its judgment and
commitment order. (Doc. No. 6, Respondent’s Exhibit A) Accordingly, Petitioner had until
November 14, 2009, one year later, to file a timely petition under the AEDPA. Instead, he
filed over a month later, on December 30, 2009, Doc. No. 2.
The statute of limitations was not tolled. Section 2244(d)(2) of the AEDPA provides
that “[t]he time during which a properly filed application for State post-conviction 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 section.” Rule 37 of the Arkansas Rules
of Criminal Procedure affords the convicted a limited right to collaterally attack a guilty plea
if, among other things, the petition is filed within ninety (90) days of the judgment’s entrydate. See Ark. R. Crim. P. 37.1 & 37.2. An untimely Rule 37 petition is not “properly filed”
for purposes of the AEDPA and does not toll the one-year limitation period. See Artuz v.
Bennett, 531 U.S. 4, 8 (2000) (application for collateral review is “properly filed” when it
complies with “the applicable laws and rules governing filings”). Here, there is no evidence
that Petitioner filed a Rule 37 petition. Thus, because he filed his federal habeas petition after
November 14, 2009, and did not otherwise properly file a Rule 37 petition, he is not entitled
to tolling under § 2244(d)(2).
Nevertheless, a district court may equitably toll the limitation period if the petitioner
affirmatively demonstrates that extraordinary circumstances beyond his control made it
impossible to file a petition on time, or that the defendant engaged in conduct that “lulled the
petitioner into inaction.” Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000). Petitioner
makes no such showing here. He alleges in his petition that he mailed his “appeal
application” to the State Court of Appeals “prior to 9-25-09,” which the Jefferson County
Circuit Court Clerk later returned with a letter informing Petitioner that he “had to file 
through the Federal Courts.” (Doc. No. 2 at 13) Petitioner offers no explanation as to why
he waited months before taking action. Further, he presents no evidence that the State lulled
him into inaction––or that extraordinary circumstances prevented him from filing his habeas
petition within the time-frame prescribed by the AEDPA. He appears to argue in his Reply,
Doc. No. 9 at 6-7, that once he mailed appeal materials to the Arkansas court, the limitations
period was tolled. However, as mentioned, that is not the law. Simply holding pro se status
and being naive regarding filing procedures and deadlines are not adequate reasons to toll the
limitations period, either statutorily or equitably. See Shoemate v. Norris, 390 F.3d 595, 598
(8th Cir. 2004). Accordingly, Petitioner’s habeas petition is time-barred.
IT IS, THEREFORE, ORDERED that Petitioner’s Petition for Writ of Habeas Corpus,
Doc. No. 2, be dismissed with prejudice.
DATED this 27th day of September, 2011.
UNITED STATES MAGISTRATE JUDGE
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