Nichols v. Hobbs

Filing 35

ORDER APPROVING AND ADOPTING 26 PROPOSED FINDINGS AND RECOMMENDED DISPOSITION in their entirety as this Court's findings in all respects; denying 2 petition for writ of habeas corpus with prejudice; denying all pending motions as moot; and finding that a certificate of appealability is denied. Signed by Judge Kristine G. Baker on 04/22/2015. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JOHNNY LEE NICHOLS
ADC #115100
v.

PETITIONER

Case No. 5:13-cv-00357-KGB-JTR

WENDY KELLEY, Director,
Arkansas Department of Correction1

RESPONDENT
ORDER

The Court has reviewed the Proposed Findings and Recommended Disposition submitted
by United States Magistrate Judge J. Thomas Ray (Dkt. No. 26), as well as the objections filed
by petitioner Johnny Lee Nichols (Dkt. No. 27). The Court also has reviewed respondent Ray
Hobbs’s response to petitioner’s objections to Magistrate Judge’s Proposed Findings and
Recommended Disposition (Dkt. No. 28). After carefully considering these documents and
making a de novo review of the record in this case, the Court concludes that the Proposed
Findings and Recommended Disposition should be, and hereby are, approved and adopted in
their entirety as this Court’s findings in all respects. Judgment will be entered accordingly.
The Court writes separately to address Mr. Nichols’s objections. First, Mr. Nichols cites
Martinez v. Ryan, 132 S. Ct. 1309 (2012), for the propositions that he should have been
appointed counsel in postconviction proceedings and that this Court should not dismiss his
petition as untimely. However, Martinez stands for neither of those propositions, as it merely
states that a procedural default may be excused under certain circumstances. 132 S. Ct. at 1318.
There is nothing in Martinez indicating that the Supreme Court meant the statute of limitations in
the Antiterrorism and Effective Death Penalty Act (“ADEPA”), under which Mr. Nichols’s
1

Wendy Kelley became Director of the Arkansas Department of Correction on January
13, 2015, and is automatically substituted as respondent pursuant to Federal Rule of Civil
Procedure 25(d).

current habeas petition is untimely, to be affected. See 28 U.S.C. § 2244(d)(1)(A). Whether a
claim is procedurally defaulted is a completely distinct question from whether it is barred by the
statute of limitations.
Second, Mr. Nichols contends he experienced difficulties in his state postconviction
proceedings that caused his filings in those proceeding to be improperly filed through no fault of
his own. The Court agrees with Judge Ray that these difficulties do not show that he acted
diligently in initiating this federal habeas action, which again is a completely distinct question.
Third, Mr. Nichols argues that the Uniform Commercial Code applies to this plea
agreement and trumps the AEDPA’s statute of limitations. This action, filed under 28 U.S.C. §
2254, is governed by the AEDPA’s statute of limitations.
It is therefore ordered that this petition for a writ of habeas corpus under 28 U.S.C. §
2254 is denied (Dkt. No. 2), and this case is dismissed with prejudice. All pending motions are
denied as moot (Dkt. Nos. 18, 21, 24, 30, 32). A certificate of appealability is denied pursuant to
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts.
SO ORDERED this the 22nd day of April, 2015.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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