Lambert v. Hobbs

Filing 13

ORDER ADOPTING 11 Report and Recommendations with an additional explanation; Lambert's section 2254 petition is denied as untimely; no certificate of appealability will issue. Signed by Judge J. Leon Holmes on 11/4/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
TERRANCE ARNEZ LAMBERT,
ADC#108321
v.

PETITIONER

No. 5:12CV00376 JLH-JJV

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT
ORDER

Terrance Arnez Lambert has filed a petition under 28 U.S.C. § 2254 for a writ of habeas
corpus. United States Magistrate Judge Joe J. Volpe has recommended that the Court dismiss the
petition as time-barred. Lambert has responded and objects to the recommendation. Upon a de novo
review, the Court adopts the recommendation with this additional explanation as to why Lambert’s
petition is time-barred.
Title 28 U.S.C. § 2244(d) provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of –
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.

(2) The 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 subsection.
28 U.S.C. § 2244(d). Lambert does not contend that the State has prevented him from filing an
application created by state action, that he is asserting a newly-recognized constitutional right, or that
the factual predicate of his claims could not have been discovered earlier. Consequently, the issue
is whether section 2254 petition was filed within one year from the date on which the judgment
became final by conclusion of direct review or expiration of the time for seeking such review.
As Judge Volpe noted, the judgment and commitment order in Lambert’s case was entered
on January 31, 2011. Lambert did not appeal. Under Arkansas law, he did not have the right to file
a direct appeal from a guilty plea. Matthews v. State, 305 Ark. 207, 208, 807 S.W.2d 29, 30 (1991).
He did have the right, however, to file a petition under Rule 37 of the Arkansas Rules of Criminal
Procedure. Although the State argues that Lambert never filed a Rule 37 petition, Lambert attached
to his section 2254 petition a copy of the State’s response to his Rule 37 petition and a copy of the
order denying that petition. See Document #2 at 10, 13. The order denying Lambert’s Rule 37
petition was entered on May 31, 2011. Again, Lambert did not appeal.
Although Lambert did not appeal, he did subsequently file a habeas corpus petition in the
Circuit Court of Lee County, Arkansas. That petition was denied, and this time he did appeal. The
Supreme Court of Arkansas dismissed the habeas petition for two reasons. First, Lambert’s habeas
petition was in substance a petition for relief under Rule 37, but Rule 37 bars second or subsequent
petitions. Document #2 at 22. Second, even if Lambert’s petition were considered as a habeas
petition, it was untimely. Document #2 at 23.

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Lambert’s Rule 37 petition is not part of the record in this Court, so the Court does not know
when it was filed. For purposes of section 2244(d)(2), the Court will assume that Lambert’s Rule 37
petition was filed on the day after the entry of his judgment and commitment order. If so, the time
between January 31, 2011, and May 31, 2011, when the order was entered denying his Rule 37
petition, would not count toward the period of limitation. Lambert’s subsequent habeas corpus
petition was not a properly-filed application for State post-conviction or other collateral review as
the Arkansas Supreme Court held in dismissing it. See Nelson v. Norris, 618 F.3d 886, 892 (8th Cir.
2010) (explaining that the Arkansas Supreme Court’s determination that a motion for post-conviction
relief was invalid is the end of the matter; such a motion is not properly filed and does not toll the
period of limitations). Because Lambert’s habeas petition was not properly filed and does not toll
the period of limitations, the one-year period of limitations within which Lambert could file a section
2254 proceeding began no later than May 31, 2011, when his Rule 37 petition was dismissed.
Lambert’s section 2254 petition includes a declaration that he placed it in the prison mailing
system on September 21, 2012. Pursuant to the prison mailbox rule, his petition was deemed filed
on that date. That date is more than three months past the deadline for filing his petition under
section 2244(d)(2).
Section 2244(d) is subject not only to statutory tolling but also to equitable tolling. Id. A
petitioner is entitled to equitable tolling only if he shows that he has been pursuing his rights diligently
and some extraordinary circumstance stood in his way and prevented timely filing. Id. at 892-93.
Lambert does not argue that he is entitled to equitable tolling. Nor has he shown that he has been
pursuing his rights diligently and that some extraordinary circumstance stood in his way. Id. at 89293. Thus, Lambert has failed to show any basis for tolling the period of limitations.
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Therefore, as Judge Volpe recommended the Court find, Lambert’s section 2254 petition is
denied as untimely. For the reasons stated in Judge Volpe’s proposed findings and recommended
disposition, no certificate of appealability will issue.
IT IS SO ORDERED this 4th day of November, 2013.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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