Smith v. Kelley

Filing 13

ORDER adopting 10 Recommendation as modified and overruling 11 Objections. Smith's claims are time-barred; and his case doesn't present extraordinary circumstances warranting equitable tolling. His 1 Petition will be dismissed with prejudice. No certificate of appealability will issue. Signed by Judge D. P. Marshall Jr. on 12/20/2016. (jak)

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

WILLIE JAMES SMITH
ADC #127694
v.

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I

PETITIONER
No. 5:16-cv-166-DPM

WENDY KELLEY

RESPONDENT

ORDER
1. On de nova review, the Court adopts the recommendation as

modified, NQ 10, and overrules Smith's objections, NQ 11.

FED.

R. CN. P.

72(b)(3).
2. The Court believes the Magistrate Judge's fallback position -that the

statute of limitations was tolled during the ninety days allowed to lodge the
appellate record-is the correct one. NQ 10 at 5; Mills v. Norris, 187 F.3d 881,
884 (8th Cir. 1999). Smith believes his petition to correct an illegal sentence,

NQ 8-13, also tolled the statute of limitations. But that petition was filed in his
2010 case. NQ 8-13at1. As the Magistrate Judge notes, in this habeas petition,
Smith challenges the conviction in his 2014 case. NQ 1at1; NQ 10 at 3 & n.3.
Thus, even with statutory tolling, Smith's petition was almost two months
late.

3. Smith makes a run at equitable tolling; but it fails. It's unclear
whether Smith followed the procedure for getting his Rule 37 record lodged.

Compare NQ 8-6 with NQ 11at3 (notice of appeal without an attached verified
in forma pauperis form); ARK. R. APP. P. -CRIM. 2(c)(l)-(2). But even if he did,
he hasn't shown the extraordinary circumstances required for equitable
tolling. Kreutzer v. Bowersox, 231F.3d460, 463 (8th Cir. 2000). The law in this
area is strict. Even for prose petitioners, confusion about state rules or the
federal statute of limitations isn't an extraordinary circumstance.

E.g.,

Shoemate v. Norris, 390 F.3d 595, 597-98 (8th Cir. 2004). When Smith's recordlodging issues began, he could have filed a placeholder federal habeas petition
and requested a stay while those issues played out. He didn't. And this isn't
a case where a trial or appellate court lulled Smith into inaction by failing to
"follow an established procedure that would have allowed [Smith's] claims
to be heard." Johnson v. Hobbs, 678 F.3d 607, 612 (8th Cir. 2012); Smith v. State,
2016 Ark. 194 (per curiam). Without the verified in forma pauperis application,
for example, the circuit clerk had no obligation to prepare, certify, and
transmit the record on appeal. In short, Smith hasn't cleared the high bar that
the equitable tolling cases set.

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4. Smith's claims are time-barred; and his case doesn't present
extraordinary circumstances warranting equitable tolling. Holland v. Florida,
560 U.S. 631 (2010). His petition, NQ 1, will therefore be dismissed with
prejudice. No certificate of appealability will issue. 28 U.S.C. § 2253(c)(l)-(2);
Khaimov v. Crist, 297 F.3d 783, 786 (8th Cir. 2002).

So Ordered.

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