Guerra v. Kelly

Filing 32

ORDER denying Motions 19 , 24 , & 29 . On de novo review, the Court adopts the recommendation, 25 , as modified and overrules Guerra's objections. Guerra's claims are time-barred and procedurally defaulted. His petition, 2 , will therefore be dismissed with prejudice. No certificate of appealability will issue. Signed by Judge D. P. Marshall Jr. on 8/24/2016. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
GILBERTO GUERRA
ADC #123482

v.

PETITIONER
No. 5:16-cv-57-DPM

WENDY KELLEY, Director, ADC

RESPONDENT

ORDER
1. Motions, NQ 19, 24, & 29, denied. A request to dismiss on procedural

grounds isn't the same as a substantive answer. Rules 4 & 5 of the Rules
Governing§ 2254 Cases, and Advisory Committee Notes.
2. On de nova review, the Court adopts the recommendation, NQ 25, as

modified and overrules Guerra's objections, NQ 30-31. FED. R. Crv.P. 72(b)(3).
3. The modifications.

First, Guerra's habeas petition was due by

6 October 2003-not 2002. NQ 25 at 3; Camacho v. Hobbs, 774 F.3d 931, 934-35
(8th Cir. 2015). Nonetheless, his petition was still almost thirteen years late.
Second, the recommendation's language echoing Kreutzer might give
the impression that Guerra has counsel. NQ 25 at 4. He doesn't. But
Magistrate Judge Kearney's conclusion still holds: Guerra hasn't shown
extraordinary circumstances warranting equitable tolling. E.g., Cross-Bey v.

Gammon, 322 F.3d 1012, 1015-16 (8th Cir. 2003).

Third, Guerra suggests he's actually innocent. NQ 2 at 103-08; NQ 31

at 6-7. But he falls far short of making the showing required to bypass the
statute of limitations or excuse his procedural default. McQuiggin v. Perkins,
133 S. Ct. 1924, 1928 (2013); House v. Bell, 547 U.S. 518, 536-39 (2006).
Fourth, Guerra's successful § 1983 case in the W estem District of
Arkansas, NQ 29 at 27-37, established that he was beaten, and placed in the
restraint chair for several hours on three occasions, while he was a pretrial
detainee in the Benton County Detention Center.

Those constitutional

violations, though, don't undermine the limitations and default bars that
prevent this Court from considering his habeas petition on the merits.
4. Guerra's claims are time-barred and procedurally defaulted. His
petition, NQ 2, will therefore be dismissed with prejudice. No certificate of
appealability will issue. 28 U.S.C. § 2253(c)(l)-(2).
So Ordered.

D.P. Marshall Jr.
United States District Judge

-2-