Lawshea v. Hobbs
OPINION AND ORDER denying plaintiff's 2 Petition for Writ of Habeas Corpus. No certificate of appealability will be issued. Signed by Judge J. Leon Holmes on 10/8/2014. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
KENNETH LEE LAWSHEA,
NO. 5:13CV00001 JLH/JTK
RAY HOBBS, Director,
Arkansas Department of Correction
OPINION AND ORDER
Kenneth Lee Lawshea was convicted of capital murder in a bench trial in Mississippi
County, Arkansas, and sentenced to life without parole. His conviction was affirmed by the
Supreme Court of Arkansas on December 3, 2009. Lawshea v. State, 2009 Ark. 600, 357 S.W.3d
901. The Supreme Court of Arkansas issued its mandate on December 22, 2009.1 On February 15,
2010, Lawshea placed in the prison mailbox system a petition for relief pursuant to Rule 37 of the
Arkansas Rules of Criminal Procedure. He never received a file-marked copy of his petition, though
he wrote the Circuit Clerk of Mississippi County on several occasions asking about the status of his
case. Finally, on March 29, 2012, the Circuit Clerk responded to Lawshea’s inquiries, informing
him by letter that her office had never received a Rule 37 petition from him. On January 4, 2013,
Lawshea placed in the prison mailbox system his petition under 28 U.S.C. § 2254 for writ of habeas
United States Magistrate Judge Jerome T. Kearney has issued Proposed Findings and
Recommended Disposition in which he recommends that Lawshea’s section 2254 petition be denied
because it is barred by the one-year statute of limitations contained in 28 U.S.C. § 2244(d)(1)(A)
The Court has taken judicial notice of the Supreme Court docket in Lawshea’s case as
shown on the Arkansas Judiciary website, https://caseinfo.aoc.arkansas.gov.
and because the claims asserted by Lawshea are procedurally defaulted. Lawshea has filed
The initial question is whether Lawshea’s petition filed in this Court is barred by the oneyear period of limitations in section 2244(d)(1)(A). That statute provides that a section 2254 petition
must be filed within one year from the date on which the judgment became final by conclusion of
direct review or the expiration of the time for seeking such review. Lawshea’s time for seeking a
writ of certiorari from the United States Supreme Court expired on March 22, 2010, so the period
of limitations began to run on March 23, 2010. That period expired on March 23, 2011. As noted,
Lawshea placed his section 2254 petition in the prison mailbox system on January 4, 2013. By
statute, the time during which a properly filed application for state post-conviction review tolls the
running of the one-year period of limitations. See 28 U.S.C. § 2244(d)(2). That provision does not
save Lawshea’s petition in this Court, however, because his Rule 37 petition was never properly
filed. The Arkansas Supreme Court has held that Rule 37 “requires in language that is clear and
unambiguous that the petition must be filed in the appropriate circuit court within ninety days of
judgment.” Hamel v. State, 338 Ark. 769, 771, 1 S.W.3d 434, 436 (1999). In so holding, the
Supreme Court of Arkansas explicitly rejected he prison mailbox rule. Id.
The period of limitations in section 2244(d)(1)(A) is also subject to equitable tolling,
provided that the petitioner (1) that he has been pursuing his rights diligently and (2) that some
extraordinary circumstance prevented timely filing. Holland v. Florida, 560 U.S. 631, 649, 130 S.
Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010).
As noted, the Circuit Clerk of Mississippi County, Arkansas, wrote a letter dated March 29,
2012, to Lawshea informing him that her office had never received his Rule 37 petition. Assuming
that it took five or six days for that letter to reach Lawshea, sometime around April 4, 2012, he
learned that his Rule 37 petition had never been filed. Pursuant to the prison mailbox rule, his
section 2254 petition was filed on January 4, 2013, some nine months later.
In Nelson v. Norris, 618 F.3d 886 (8th Cir. 2010), the Eight Circuit decided a case that is
similar to this one. There, the prisoner had filed a Rule 37 petition that had been verified only by
his lawyer, not by him, and the Arkansas Supreme Court summarily denied the petition for lack of
a proper verification on November 17, 2005. Id. at 893. In rejected Nelson’s claim that he was
entitled to equitable tolling of the section 2244(d)(1)(A) period of limitations, the Eighth Circuit
Nelson did not file his federal habeas petition until August 21, 2006 – 277 days, or
nine months – after the Arkansas Supreme Court denied rehearing. In Pace [v.
DiGuglielmo, 544 U.S. 408, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005)], the Supreme
Court found that a petitioner was not diligent when he waited five months after the
judgment of conviction became final to file his petition. 544 U.S. at 419, 125 S. Ct.
1807. Similarly, in Earl v. Fabian, the petitioner alleged “that he did not receive
notice that his judgment of conviction had become final until . . . approximately
seven months after the decision was rendered,” but this court noted that the petitioner
“still had . . . a span of approximately eight months . . . to file his habeas petition.”
556 F.3d 717, 724 (8th Cir. 2009). This court concluded that “under such
circumstances [the petitioner] would not be entitled to equitable tolling.” Id. Further,
Nelson has made no showing that some extraordinary circumstances stood in his way
to prevent a timely filing.
We hold that, like the petitioners in Pace and Earl, Nelson failed to pursue
his rights diligently by not filing his habeas petition until nine months after the
Arkansas Supreme Court denied rehearing and therefore is not entitled to equitable
tolling of the statute of limitations.
Id. This Eighth Circuit precedent leads to the conclusion that Lawshea is not entitled to equitable
tolling because he did not pursue his rights diligently after learning that his Rule 37 petition had
never been filed in the Circuit Court of Mississippi County, Arkansas.
For the reasons stated, Kenneth Lee Lawshea’s petition for habeas corpus relief pursuant to
28 U.S.C. § 2254 is DENIED. No certificate of appealability will be issued.
IT IS SO ORDERED this 8th day of October, 2014.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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