Willyard v. Hobbs
ORDER APPROVING AND ADOPTING 12 PROPOSED FINDINGS AND RECOMMENDATIONS in their entirety as this Court's findings in all respects; dismissing with prejudice Mr. Willyard's 2 petition; denying as moot Mr. Willyard's 13 25 mot ions to compel and 34 motion for evidentiary hearing; finding that the dismissal of the complaint counts as a "strike"; and certifying that an in forma pauperis appeal taken from the order and judgment dismissing this action is considered frivolous and not in good faith. Signed by Judge Kristine G. Baker on 03/23/2015. (rhm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
PHILLIP L WILLYARD
Case No. 5:14-cv-00093-KGB
RAY HOBBS, Director,
Arkansas Department of Correction
The Court has reviewed the Proposed Findings and Recommendations submitted by
United States Magistrate Judge Beth Deere (Dkt. No. 12) and the objections filed by plaintiff
Phillip L. Willyard (Dkt. No. 14), as well as the affidavits Mr. Willyard filed in support of his
objections (Dkt. Nos. 15, 16, 22, 24, 29, 30). After carefully considering the objections and
making a de novo review of the record in this case, the Court concludes that the Proposed
Findings and Recommendations should be, and hereby are, approved and adopted in their
entirety as this Court’s findings in all respects.
The Court writes separately to address several of Mr. Willyard’s objections.
Willyard argues that he is entitled to equitable tolling of the statute of limitations for filing a
federal petition for writ of habeas corpus because there is new evidence showing his actual
Mr. Willyard contends that he has offered new evidence proving that he was
deployed in Iraq during the time he was alleged to have committed the underlying offense. Mr.
Willyard argues that he did not have this evidence at the time of his guilty plea because at that
time the evidence was protected by the Classified Information Procedures Act (“CIPA”), 18
U.S.C.App. 3, and because he did not receive this evidence from the National Personnel Records
Center until March 21, 2013, and November 18, 2013.
It is unclear to the Court whether Mr. Willyard received all of the evidence he now
submits on or after March 13, 2013, or if Mr. Willyard was in possession of or had access to
some of this evidence at the time of his guilty plea. Nonetheless, the Court need not decide this
issue to resolve Mr. Willyard’s petition. Even if this Court accepts as true Mr. Willyard’s claim
that this is new evidence he now submits unavailable to him at the time of his guilty plea, this
evidence only shows that Mr. Willyard was deployed to Iraq during the alleged initial contacts
with the victim in the offense; Mr. Willyard offers no proof to account for a period of nearly
three years in which prosecutors charged that Mr. Willyard made “off and on” contacts with the
victim. Furthermore, Mr. Willyard does not dispute that he was present at a Super 8 Motel in
Russellville, Arkansas, on October 8, 2011, where, prosecutors charged, he committed the most
recent act of his underlying offense. Even if this Court accepts as true Mr. Willyard’s claim that
this is new evidence he now submits unavailable to him at the time of his guilty plea, Mr.
Willyard has failed to persuade this Court that, in the light of this evidence, no juror acting
reasonably would have found Mr. Willyard guilty beyond a reasonable doubt. See McQuiggin v.
Perkins, 133 S. Ct. 1924, 1935 (2013) (“[A] petitioner does not meet the threshold requirement
[for showing actual innocence] unless he persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable
The Court also writes to address Mr. Willyard’s claim that the state court failed to give
him a competency hearing when he entered his guilty plea. Mr. Willyard had the opportunity
after his conviction to challenge his guilty plea in state court under Arkansas Rule of Criminal
Procedure 37 on the basis that the guilty plea was not made voluntarily and intelligently or that it
was made without effective assistance of counsel. Mr. Willyard did not do so. Moreover, Mr.
Willyard has failed to show that he is entitled to equitable tolling of the statute of limitations for
filing federal habeas petitions. 28 U.S.C. § 2244. As Judge Deere noted, Mr. Willyard waited
over eight months after the judgment was entered to file a state habeas petition and more than
eight months after the federal statute of limitations expired to file his federal habeas petition.
Mr. Willyard does not argue that he was unaware of the one-year federal limitations period or
that he was prevented by some extraordinary circumstance from complying with the limitations
period. Mr. Willyard has neither pursued his rights diligently nor established that extraordinary
circumstances prevented him from timely filing his petition for writ of habeas corpus in federal
court. See Holland v. Florida, 560 U.S. 631 (2010) (holding that a petitioner is entitled to
equitable tolling of the statute of limitations only if he shows that he has pursued his rights
diligently and that some extraordinary circumstances stood in his way and prevented a timely
Accordingly, judgment shall be entered dismissing this complaint with prejudice.
The Court will not issue a Certificate of Appealability because Mr. Willyard has not
made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(1)-(2).
It is therefore ordered that:
Mr. Willyard’s petition is barred by the Statute of Limitations under 28 U.S.C. §
2244(d)(1) and is therefore dismissed with prejudice.
Mr. Willyard’s motions to compel discovery (Dkt. Nos. 13, 25) and his motion for
evidentiary hearing (Dkt. No. 34) are denied as moot.
This dismissal of Mr. Willyard’s complaint counts as a “strike” for purposes of 28
U.S.C. § 1915(g).
The Court certifies that an in forma pauperis appeal taken from the order and
judgment dismissing this action is considered frivolous and not in good faith.
SO ORDERED this 23rd day of March, 2015.
Kristine G. Baker
United States District Judge
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