Butler v. Kelley
ORDER adopting 14 Recommendation. Motions 18 and 19 denied. Butler's petition will be dismissed with prejudice. No certificate of appealability will issue. Signed by Judge D. P. Marshall Jr. on 9/2/2016. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
LOUIS RICARDO BUTLER
WENDY KELLEY, Director of the
Arkansas Department of Correction
1. On de nova review, the Court adopts Magistrate Judge Ray's careful
recommendation, NQ 14, and overrules Butler's objections, NQ 17. FED. R. CIV.
P. 72(b)(3). Butler makes a hard run at equitable tolling; but he focuses
primarily on the period when his Rule 37 counsel still represented him. Even
if the Court assumed diligence during that time, though, Butler's equitable
tolling argument would still fail. The one-year hiatus between the Arkansas
Supreme Court's decision on Butler's Rule 37 appeal and the filing of his
habeas petition precludes a diligence finding. Nelson v. Norris, 618 F.3d 886,
892-93 (8th Cir. 2010). The precedent on tolling is strict; and under those
cases, Butler's petition is untimely.
2. Butler's motion to stay,NQ 18-1, is denied. The Court isn't convinced
that the ongoing state proceedings will produce any evidence to shore up
diligence during the year-long period noted above. Butler's motion to expand
the record, Ng 19, is similarly denied. None of the materials attached to the
motion would change the diligence calculus.
Recommendation, Ng 14, adopted. Motions, Ng 18-1 & 19, denied.
Butler's petition will be dismissed with prejudice.
No certificate of
appealability will issue. 28 U.S.C. § 2253(c)(l)-(2).
D.P. Marshall Jr.
United States District Judge
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