McClure v Hobbs et al

Filing 16

ORDER APPROVING AND ADOPTING 12 PROPOSED FINDINGS AND RECOMMENDATIONS and dismissing Mr. McClure's 1 petition with prejudice. The requested relief is denied. Signed by Judge Kristine G. Baker on 12/10/2014. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
RONALD ANDREW MCCLURE
ADC #103505
v.

PETITIONER

Case No. 5:14-cv-00179-KGB-JJV

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT
ORDER

The

Court

has

reviewed

the

Proposed

Findings

and

Recommendations

(“Recommendations”) submitted by United States Magistrate Judge Joe J. Volpe (Dkt. No. 12),
as well as petitioner Ronald Andrew McClure’s objections (Dkt. No. 15). After carefully
considering the objections and making a de novo review of the record in this case, the Court
concludes that, to the extent that the Recommendations are inconsistent with Mr. McClure’s
representations regarding the procedural history of his case, apparently presented for the first
time in his objections, the Court declines to adopt the Recommendations. However, even when
assuming the truth of Mr. McClure’s representations regarding the procedural history of his case,
the Court approves and adopts the Recommendations’s legal conclusions and recommended
disposition.
The

Court

writes

separately

to

address

Mr.

McClure’s

objections

to the

Recommendations’s finding that no time was or should be tolled. Mr. McClure argues that he
filed “a string of motions and petitions” after his Judgment and Commitment Order was entered
on October 11, 2001 (Dkt. No. 15, at 1). Particularly, Mr. McClure claims that he filed an
Arkansas Rule of Criminal Procedure 37 petition on January 15, 2002 (Id. at 30). Based on the
record before this Court, it appears that, on March 5, 2002, the Pulaski County Circuit Court

denied Mr. McClure’s Rule 37 petition because it was not filed within the 90-day deadline for
filing such petitions (Id. at 40). See Ark. R. Crim. P. 37.2(c). Although the Pulaski County
Circuit Court stated that Mr. McClure filed his Rule 37 petition on February 19, 2002, his
petition was untimely whether filed on January 15, 2002, or February 19, 2002, as the 90-day
deadline expired on January 9, 2002.
Mr. McClure also claims that, on June 22, 2002, he attempted to file an appeal of the
Pulaski County Circuit Court’s denial of his Rule 37 petition (Dkt. No. 15, at 43-44), but that, on
November 10, 2004, the Circuit Clerk responded to Mr. McClure’s inquiry about his appeal by
stating that no appeal had been filed (Id. at 46-47). Regardless, it appears that Mr. McClure’s
appeal would have been untimely. See Ark. R. App. P. 2(a).
Mr. McClure next contends that he filed or attempted to file a “declaratory judgment
petition for breach of contract” in 2007 and a 42 U.S.C. § 1983 action on January 23, 2008,
before filing the writ of error coram nobis on November 29, 2010, which is discussed in the
Recommendations (Dkt. No. 15, at 5).
To the extent that the Recommendations are inconsistent with Mr. McClure’s
representations regarding the procedural history of his case, apparently presented for the first
time in his objections, the Court declines to adopt the Recommendations. However, even when
assuming the truth of Mr. McClure’s representations regarding the procedural history of his case,
the Court approves and adopts the Recommendations’s legal conclusions and recommended
disposition. Pursuant to 28 U.S.C. § 2244(d)(2), the time during which applications for state
post-conviction or other collateral review are pending is not counted toward the period of
limitation as long as they are properly filed. Giving Mr. McClure the benefit of the doubt and
assuming that his Rule 37 petition was under review until November 10, 2004—the day that the

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Pulaski County Circuit Court Clerk informed him that no appeal had been filed—the one-year
statute of limitation began to run on that date. His federal habeas petition would have been due
on November 10, 2005, but it still was not filed until March 6, 2014. Although Mr. McClure
also claims that he filed or attempted to file other actions that ultimately sought post-conviction
relief, the earliest of these actions was not filed until 2007, and the statute of limitation clock
may not be tolled after it has already expired. See Jackson v. Ault, 452 F.3d 734, 735-36 (8th
Cir. 2006); Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001).
Pursuant to 28 U.S.C. § 2253 and Rule 11 of the Rules Governing Section 2554 Cases in
the United States District Courts, the Court must determine whether to issue a certificate of
appealability in the final order. In § 2254 cases, a certificate of appealability may issue only if
the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(1)-(2). The Court finds no issue on which Mr. McClure has made a substantial showing
of a denial of a constitutional right. Thus, the certificate of appealability is denied.
It is therefore ordered that Mr. McClure’s petition is dismissed with prejudice (Dkt. No.
1). The requested relief is denied.
IT IS SO ORDERED THIS the 10th day of December, 2014.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE 

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