Chance v. Kelley
MEMORANDUM OPINION AND ORDER dismissing 2 petition with prejudice. A certificate of appealability is denied. Signed by Magistrate Judge Beth Deere on 9/9/2015. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
FRANKLIN L. CHANCE
CASE NO.: 5:15CV00189 BD
WENDY KELLEY, Director,
Arkansas Department of Correction
MEMORANDUM OPINION AND ORDER
In January, 2004, the State charged petitioner Franklin L. Chance with six counts
of rape and six counts of incest. (Docket entry #5-2 at p. 1) On November 16, 2004,
midway through his jury trial in the Circuit Court of Lincoln County, Mr. Chance
appeared with his counsel in chambers and, after the court conducted a plea colloquy with
Mr. Chance, entered a negotiated plea of nolo contendere to all of the counts charged.
(#2 at pp. 5, 12; #5-3; #5-4) In a judgment and commitment order filed November 24,
2004, the court sentenced Mr. Chance to 20 years on each count of rape and 10 years on
each count of incest and ordered that the sentences be served concurrently. (#5-5)
Mr. Chance did not file a direct appeal or petition under Arkansas Rule of
Criminal Procedure 37. On March 12, 2014, he filed a habeas petition with the Circuit
Court of Lee County, Arkansas, which was denied. Mr. Chance appealed the denial of
his petition to the Arkansas Supreme Court, which affirmed, finding that Mr. Chance had
not stated grounds for relief. (#5-6) Chance v. Hobbs, 2014 Ark. 400.
Mr. Chance filed a second habeas petition with the Chicot County Circuit Court on
November 14, 2014, raising the same grounds for relief that he had raised in his first
petition. (#5-7) The court denied the petition, and the Arkansas Supreme Court affirmed.
Chance v. State, 2015 Ark. 154, 3-4.
Mr. Chance filed a petition for writ of habeas corpus with this Court on June 10,
2015, claiming: (1) he did not waive his right to a jury trial when he entered a negotiated
plea of nolo contendere; (2) the trial court never had cause or consent to dismiss the jury;
(3) he never pleaded nolo contendere to the charges, and the judgment was falsified; and
(4) the State has refused to allow him to develop the facts supporting his allegations in
state court. (#2)
Director Wendy Kelley has responded to the petition. (#5) She maintains that Mr.
Chance’s claims are either barred by the statute of limitations or lack merit. For the
reasons discussed below, Mr. Chance’s petition is denied and dismissed.
The Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2244(d)(1), establishes a one-year limitations period for state prisoners to
commence habeas corpus proceedings under 28 U.S.C. § 2254. The limitation period
begins to run from, “the date on which the judgement became final by the conclusion of
direct review or the expiration of the time limit for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). Under § 2244(d)(2), “[t]he 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 section.”
In this case, Mr. Chance entered a plea of nolo contendere on November 16, 2004,
and the trial court entered a judgment-and-commitment order that was filed on November
24, 2004. See Bradford v. State, 351 Ark. 394, 401 (2003) (under Arkansas law, criminal
judgment is effective when entered of record by filing with circuit court clerk); ARK. SUP.
CT. ADMIN. ORDER NO. 2(b)(2) (judgment, decree or order is entered when stamped or
otherwise marked with the date and time and the word “filed”). Allowing Mr. Chance
thirty days for direct review of his guilty plea, the statute of limitations began to run on
December 24, 2004, and expired on Monday, December 26, 2005. See Camacho v.
Hobbs, 774 F.3d 931 (8th Cir. 2015) (Arkansas petitioners are granted 30 days to file a
notice of appeal for purposes of the AEDPA).
Title 28 U.S.C. § 2244(d)(2) provides that “[t]he 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 section.”
Mr. Chance had ninety days following the entry of the judgment-and-commitment
order to file a petition for relief under Rule 37 of the Arkansas Rules of Criminal
Procedure; however, he never pursued a petition for post-conviction relief. Instead, he
filed two state habeas petitions more than nine years after his conviction became final.
Both petitions were denied because Mr. Chance failed to raise claims that were
cognizable in a state habeas petition. (#5-6, #5-7)
Even if Mr. Chance’s state habeas petitions had been “properly filed,” the petitions
did not toll the statute of limitations under § 2244(d)(2), because both petitions were filed
well after the statute of limitations had expired. See Cross–Bey v. Gammon, 322 F.3d
1012, 1014 (8th Cir.2003) (statute of limitations period is not tolled during the pendency
of a proceeding commenced after the limitations period has expired).
Because Mr. Chance is not entitled to statutory tolling, the statute of limitations for
Mr. Chance to file a federal habeas petition expired on December 26, 2005. Mr. Chance
did not file the current petition until June 10, 2015, over nine years later. Thus, his claims
are barred unless he establishes that he is entitled to equitable tolling.
The limitations period set forth in 28 U.S.C. § 2244(d)(1) is subject to equitable
tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 130 S. Ct. 2549 (2010). A
petitioner is entitled to equitable tolling, however, only if he shows: (1) that he has
pursued his rights diligently; and (2) that some extraordinary circumstances stood in his
way and prevented a timely filing. Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)).
Here, Mr. Chance waited over nine years after the judgment was entered to file a
state habeas petition and more than nine years after the federal statute of limitations
expired to file his federal habeas petition. In Pace v. DiGuglielmo, the United States
Supreme Court found that a petitioner was not diligent when he waited for five months
after the state court’s denial of post conviction relief became final to file his habeas
petition. Pace, 544 U.S. at 419. In Nelson v. Norris, 618 F.3d 886 (8th Cir. 2010), the
Court held that a nine-month delay in filing a habeas petition after the Arkansas Supreme
Court had denied rehearing did not reflect diligence. Nelson, 618 F.3d at 893. Under
Eighth Circuit precedent, Mr. Chance’s delay precludes a finding that he diligently
pursued his rights.
Even assuming Mr. Chance had acted diligently in pursuing his claim, he has not
established that extraordinary circumstances prevented him from filing his habeas corpus
petition. Mr. Chance argues that, by dismissing his state habeas petitions and appeals, the
State has refused to allow him to develop the facts of his case. The record, however, does
not support Mr. Chance’s contention that he did not knowingly enter a plea of nolo
contendere and waive his right to a jury trial.
Midway through the November 16, 2004 jury trial, Mr. Chance told the Court that
he wanted to enter a negotiated plea. (#5-4) During an in-chambers plea colloquy, Mr.
Chance stated that he was not under the influence of drugs or alcohol; was satisfied with
his attorneys; had discussed the negotiated plea with his attorneys; had not been
threatened or promised anything in exchange for his plea; and understood he was waiving
his right to continue and finish his jury trial if he changed his plea to nolo contendere.
(#5-4 at pp. 3-4) Further, Mr. Chance signed a Report of Plea Negotiations indicating
that he was entering a negotiated plea of nolo contendere to all of the charges. (#5-3) In
light of the record of Mr. Chance’s change of plea, it is difficult to see how further
development of the record could have led to evidence supporting his contention that he
did not knowingly enter a plea and waive his right to continue with a jury trial.
Moreover, even assuming the State should have conducted a hearing to develop
the facts surrounding his State habeas petitions, Mr. Chance would still not be entitled to
equitable tolling on this ground because the time for seeking relief under the AEDPA had
expired long before the State acted to deny him the ability to develop his case through his
state habeas petitions.
Based on the record, the Court cannot conclude that Mr. Chance diligently pursued
his rights or that extraordinary circumstances stood in the way of his doing so.
Accordingly, equitable tolling cannot save his federal petition.
The United States Supreme Court held that actual innocence, if demonstrated,
serves as a gateway through which a petitioner may pass to overcome the expiration of
the statute of limitations. McQuiggin v. Perkins, __ U.S. __, 133 S. Ct. 1924 (2013). The
Court cautioned, however, that “tenable actual-innocence gateway pleas are rare.” A
petitioner must persuade the district court that, in light of “new evidence,” no reasonable
juror would have found him guilty beyond a reasonable doubt. McQuiggin, 133 S.Ct. at
1928 (quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851 (1995)). The
actual-innocence exception requires a habeas petitioner to come forward with “new
reliable evidence” which was “not available at trial through the exercise of due
diligence.” Schlup, 513 U.S. at 324; Kidd v. Norman, 651 F.3d 947, 951–53 (8th Cir.
2011), cert. denied, 133 S.Ct. 137 (2012).
Mr. Chance’s claims here rest on his assertions of judicial and prosecutorial
misconduct, as well as ineffective assistance of counsel. Essentially, he claims he did not
enter a plea of nolo contendere or agree to waive his jury trial, and that the judge,
prosecutor, and public defender denied him his right to a jury trial. He has not come
forward with any new evidence, however, establishing that he is actually innocent of the
charges to which he pleaded nolo contendere so as to overcome the expiration of the
statute of limitations. (#2 at p. 5)
Certificate of Appealability
When entering a final order adverse to a petitioner, the Court must issue or deny a
certificate of appealability. See Rule 11 of the Rules Governing Section 2254 Cases in
the United States District Court. A certificate of appealability may issue only if Mr.
Chance has made a substantial showing of the denial of a constitutional right. 28 U.S.C.
§ 2253 (c)(1)-(2). In this case, after considering Mr. Chance’s petition and memorandum
of law, the Court concludes that he has not provided a basis for issuing a certificate of
After reviewing Mr. Chance’s claims for habeas relief in his petition and amended
petition, it is clear that the claims are barred by the one-year limitations period established
by 28 U.S.C. § 2244(d). Accordingly, Mr. Chance’s petition for writ of habeas corpus
(#2) is DENIED and DISMISSED, with prejudice. There is no basis for this Court to
issue a certificate of appealability. Accordingly, a certificate of appealability is DENIED.
DATED this 9th day of September, 2015.
UNITED STATES MAGISTRATE JUDGE
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