Berks v. Kelley
RECOMMENDED DISPOSITION recommending that 2 this 28 U.S.C. § 2254 Petition for a Writ of Habeas Corpus be denied, and this habeas action be dismissed, with prejudice; and a Certificate of Appealability be denied. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge J. Thomas Ray on 11/30/2017. (kdr)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
WENDY KELLEY, Director,
Arkansas Department of Correction
The following Recommended Disposition (“Recommendation”) has been sent
to United States District Judge Billy Roy Wilson. You may file written objections to
all or part of this Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days of this
Recommendation. By not objecting, you may waive the right to appeal questions of
Pending before the Court is a § 2254 Petition for a Writ of Habeas Corpus
filed by Jonathan Berks (“Berks”), an Arkansas Department of Correction (“ADC”)
inmate. Doc. 2. Before addressing Berks’s habeas claims, the Court will review the
procedural history of the case in state court.
On November 2, 2011, a Garland County jury convicted Berks of seconddegree murder and aggravated residential burglary. He was sentenced to two
consecutive thirty-year terms of imprisonment in the ADC. Doc. 8-2, at 406-08.
Berks appealed to the Arkansas Court of Appeals, which affirmed his
convictions on March 27, 2013. Berks v. State, 2013 Ark. App. 203, 427 S.W.3d 98
(Berks I). He then had eighteen days, until April 14, 2013, to file a petition for review
with the Arkansas Supreme Court. Ark. Sup. Ct. R. 2-4(a). Because April 14 fell on
a Sunday, the deadline became Monday, April 15, 2013. See Ark. R. App. P.-Crim.
17. Berks did not file a petition for review with the Arkansas Supreme Court.
On May 1, 2013, Berks filed a timely pro se Rule 37 petition in the trial court,
which he later amended. Doc. 8-10, at 12-35. On December 27, 2013, the trial court
entered an order denying Rule 37 relief. Id. at 36-37. On January 23, 2014, Berks
filed a pro se motion for modification of the trial court’s order to include a ruling on
omitted issues, which was denied on February 7, 2014. Id. at 38-41. From that date,
Berks had thirty days, until March 10, 2014, to file a notice of appeal to the Arkansas
Supreme Court. See Berks v. State, 2015 Ark. 234, at 2-3, 463 S.W.3d 289, 291
(Berks II). Berks did not file a notice of appeal by the March 10, 2014 deadline.
On April 7, 2015, Berks filed a pro se Motion for Belated Appeal with the
Arkansas Supreme Court, claiming that he did not receive the trial court’s final
February 7, 2014 order denying Rule 37 relief until March 15, 2014, after the
deadline for filing a notice of appeal. Doc. 8-11. On May 21, 2015, the Court granted
Berks’s Motion for Belated Appeal of the trial court’s denial of his Rule 37 petition
based on its determination that Berks had demonstrated “good cause” to excuse his
failure to timely file a notice of appeal. Berks II, 2015 Ark. 234, at 3-4, 463 S.W.3d
On October 27, 2016, the Arkansas Supreme Court affirmed the trial court’s
order denying Rule 37 relief. Berks v. State, 2016 Ark. 364, 501 S.W.3d 366 (Berks
On December 2, 2016, Berks initiated this § 2254 habeas action.1 He argues:
(1) his trial counsel was constitutionally ineffective in advising him to reject a thirtyyear plea offer; and (2) his convictions were obtained in violation of the Double
Jeopardy Clause. Doc. 2.
In her Response, Respondent argues that Berks’s claims should be dismissed
because: (1) the § 2254 Petition is time-barred; (2) his ineffective assistance claim
is without merit; and (3) his double jeopardy claim is procedurally defaulted and
without merit. Doc. 8. Berks filed a Reply. Doc. 10.
Although the Clerk of Court received and file-stamped Berks’s habeas Petition on
December 12, 2016, it was deemed “filed,” as a matter of law, on the date it was delivered to prison
authorities for mailing to the Court. Ford v. Bowersox, 178 F.3d 522, 523 (8th Cir. 1999); see Rule
3(d), Rules Governing § 2254 Cases in United States District Courts. The Court has given Berks
the benefit of assuming that he delivered his petition to prison authorities for mailing on December
2, 2016, the day he signed it. Doc. 2 at 22.
Because all of Berks’s habeas claims are barred by the one-year statute of
limitations contained in 28 U.S.C. § 2244(d)(1), the Court need not address
Respondent’s other arguments for dismissal.
Calculation of Limitations Period
A state prisoner seeking to challenge his state court conviction in federal court
generally must file a petition for habeas relief within one year of the date the
“judgment [of conviction] became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. ' 2244(d)(1)(A). When a
criminal defendant fails to seek discretionary review of his criminal conviction in
the state’s highest court, his judgment becomes “final” when the time for seeking
such review expires. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012); see Johnson v.
Hobbs, 678 F.3d 607, 610 (8th Cir. 2012) (in cases from the Arkansas Court of
Appeals, a conviction becomes “final” when the prisoner can no longer file a petition
for review with the Arkansas Supreme Court).
On March 27, 2013, the Arkansas Court of Appeals affirmed Berks’s
convictions. Because he elected not to seek discretionary review from the Arkansas
Supreme Court, his convictions became “final” on April 16, 2013, when he could no
longer seek review from that Court.2 Absent any tolling, Berks had one year from
that date to initiate this § 2254 habeas action.
The federal limitations period is tolled while a “properly filed” application for
post-conviction relief is pending in state court. 28 U.S.C. § 2244(d)(2). However,
the limitations period is not tolled in the interval between the conclusion of direct
review and the filing of a state post-conviction petition. Bear v. Fayram, 650 F.3d
1120, 1125 (8th Cir. 2011). Moreover, an application remains “pending” only “as
long as the ordinary state collateral review process is in process – i.e., until the
completion of that process.” Carey v Saffold, 536 U.S. 214, 219-20 (2002). Once a
prisoner’s deadline has passed for filing a notice of appeal of the denial of state postconviction relief, without action by the prisoner, the application “cease[s] to be
‘pending’” because “there is nothing ‘in continuance’ or ‘not yet decided.’” Coulter
v. Kelley, 871 F.3d 612, 622 (8th Cir. 2017).
Based on these statutory tolling rules, the Court has calculated the one-year
limitations period for the timely initiation of this federal habeas action as follows:
March 27, 2013: The Arkansas Court of Appeals enters its decision, on direct
appeal, affirming Berks’s convictions.
See Johnson, 678 F.3d at 610 & n.3 (state conviction became “final” when the prisoner
“could no longer seek review” from the Arkansas Supreme Court, i.e., the day after the deadline
for filing a petition for review with that court); King v. Hobbs, 666 F.3d 1132, 1135-36 & n.4 (8th
Cir. 2012) (habeas statute of limitations began running the day after the deadline for filing a
petition for review with the Arkansas Supreme Court); Fed. R. Civ. P. 6(a)(1)(A) (excluding from
the time computation the day of the event that triggers the time period).
April 15, 2013: The deadline for Berks to seek discretionary review of his
convictions with the Arkansas Supreme Court. He allows the deadline to
expire without seeking discretionary review.
April 16, 2013, Berks’s state convictions become “final,” and the one-year
statute of limitations begins to run.
15 days run against the statute of limitations
May 1, 2013: The limitations period is tolled when Berks files a timely Rule
37 petition in state court.
February 7, 2014: The trial court denies Berks’s motion for modification of
the order denying Rule 37 relief. He has thirty days from that date (March 10,
2014) to file a notice of appeal to the Arkansas Supreme Court.
March 10, 2014: Berks fails to file a notice of appeal, and his Rule 37
proceeding “ceases to pend,” which triggers the resumption of the limitations
March 11, 2014: The statute of limitations begins to run.
All of the 350 days remaining for Berks to file a § 2254 action expire.
February 23, 2015: The statute of limitations expires without Berks filing
a § 2254 habeas petition.
April 7, 2015: Berks files with the Arkansas Supreme Court a pro se Motion
for Belated Appeal of the trial court’s denial of his Rule 37 petition.
May 21, 2015: The Arkansas Supreme Court grants Berks’s Motion for
October 27, 2016: The Arkansas Supreme Court affirms the trial court’s order
denying Rule 37 relief.
December 2, 2016: Berks “files” his § 2254 habeas Petition, almost two years
after expiration of the statute of limitations.
When Berks missed the March 10, 2014 deadline for appealing the trial
court’s denial of his Rule 37 petition, that action “ceased to pend,” and the
limitations period for Berks to file a federal habeas petition began to run. Coulter,
871 F.3d at 622 (because no state post-conviction proceeding was “pending”
between expiration of the time for prisoner to file a notice of appeal, and the date he
filed a motion for belated appeal, there was no basis for tolling the one-year
limitations period for initiating a § 2254 action). Thus, Berks’s April 7, 2015 Motion
for Belated Appeal of the trial court’s decision to deny Rule 37 relief had no effect
on the federal statute of limitations because it expired before Berks filed that
Motion.3 The law is clear that the statute of limitations for filing a federal habeas
action “cannot be tolled after it expires.” Jackson v. Ault, 452 F.3d 734, 735-36 (8th
Accordingly, Berks filed this action almost two years after expiration of the
statute of limitations.
When a state prisoner is permitted to proceed with an out-of-time appeal in his state postconviction proceedings, the federal limitations period is tolled during the time his application for
belated appeal is “pending.” Coulter, 871 F.3d at 621-23; Streu v. Dormire, 557 F.3d 960, 963-65
(8th Cir. 2009). However, it is unclear whether the “pendency” begins when the prisoner files a
motion for belated appeal, or when the state court grants the motion. Coulter, 871 F.3d at 622 n.2;
Streu, 557 F.3d at 967 & n.3. Resolution of that issue does not affect the outcome here because the
one-year limitations period expired before Berks filed his Motion for Belated Appeal.
A federal habeas petitioner may be entitled to equitable tolling of the statute
of limitations if he can show that: (1) he has been “pursuing his rights diligently,”
but (2) “some extraordinary circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, 645, 649 (2010). To secure equitable
tolling, a petitioner must show that “the extraordinary circumstance caused him to
miss the original filing deadline.” Coulter, 871 F.3d at 624 (emphasis in original).
To excuse his untimeliness, Berks asserts that extraordinary circumstances
exist because: (1) he has “mental problems which cause [him] to live in a fantasy
world much of the time”; (2) he has learning disabilities and problems with reading
comprehension; and (3) he has had no legal representation. Doc. 10, at 1-3; see also
Doc. 2, at 20-21.
The Eighth Circuit has made it clear that equitable tolling is not justified by a
petitioner’s pro se status, lack of legal knowledge or legal resources, or any
confusion about the federal limitations period or state post-conviction law. See, e.g.,
Johnson, 678 F.3d at 611; Shoemate v. Norris, 390 F.3d 595, 597-98 (8th Cir. 2004).
However, a habeas petitioner’s “mental impairment can be an extraordinary
circumstance interrupting the limitation period,” if the impairment is of sufficient
“degree and duration” to actually interfere with his ability to file a timely habeas
petition Nichols v. Dormire, 11 F. App’x 633, 634 (8th Cir. 2001) (unpub.); see
Martin v. Fayram, 849 F.3d 691, 698 (8th Cir. 2017) (petitioner must show that his
disability “was so severe that it precluded him from filing court documents or
seeking the assistance of others to do so”); Carpenter v. Douma, 840 F.3d 867, 872
(7th Cir. 2016) (habeas petitioner must show that his physical and mental health
“actually impaired his ability to pursue his claims”), cert. denied, 137 S. Ct. 2300
(2017); Bills v. Clark, 628 F.3d 1092, 1093 (9th Cir. 2010) (petitioner must show “a
mental impairment so severe that [he] was unable personally either to understand the
need to timely file or prepare a habeas petition, and that impairment made it
impossible under the totality of the circumstances to meet the filing deadline despite
In support of his equitable tolling argument, Berks points to: (1) medical
records from the Menninger Foundation Children’s Division consisting of
psychological evaluations conducted in January and February 1985 showing
diagnoses of psychogenic speech disorder and mixed personality disorder, with
borderline schizotypal features and transient psychotic episodes, and a “Neurometric
Report,” dated January 28, 1985, showing “borderline evidence of [brain-based]
dysfunction,” which “suggests vulnerability to impulsive behavior and poor
judgment” and was likely “contributing to [Berks’s] learning problems related to
spelling, reading, and other language and auditory memory skills,” (Doc. 10, at 1012; Doc. 2, at 25-27; Doc. 8-6, at 98-99); and (2) testimony at his trial from Dr. Bob
Gayle and Dr. James Moneypenny about his brain abnormalities and related mental
problems (Doc. 8-6, at 72-112.)
The medical records from the Menninger Foundation reflect Berks’s mental
condition thirty years ago. Accordingly, they are too remote and indefinite to justify
equitable tolling. See Collins v. Scurr, 230 F.3d 1362, *1 (8th Cir. 2000) (petitioner’s
assertion of mental incompetency at time of guilty plea three years earlier was too
“remote” to “equitably toll the statute of limitations and excuse the late filing of his
§ 2254 petition”).
During the sentencing phase of Berks’s trial, in 2011, Dr. Gayle and Dr.
Moneypenny testified that, for most of Berks’s life, he had suffered from mental and
emotional problems, with symptoms of paranoia, anxiety, and depression.
According to their testimony, these symptoms worsened during stressful situations
and were further exacerbated by physical problems, residuals from surgeries, chronic
pain, and “pretty heavy duty” medications. Doc. 8-6, at 72-112. Neuropsychological
testing also indicated a brain abnormality that prevented “appropriate adequate
communication between the two cerebral hemispheres,” impairing Berks’s ability to
“come up with reasonable decisions” and “maintain impulse control.” Id. at 81, 98.
Dr. Gayle testified that, although Berks had a “diminished culpable mental state” at
the time of the crimes for which he was on trial, the medical evidence was not enough
to “sufficiently back up the case of not guilty by reason of mental disease or defect.”
Id. at 102-03. 4
While the testimony of Dr. Gayle and Dr. Moneypenny established that Berks
had mental and emotional problems and some accompanying limitations in
functioning, nothing about that testimony established that Berks had mental
impairments of a “degree and duration” sufficient to justify equitable tolling of the
statute of limitations. Thus, Berks’s evidence does not demonstrate that, during the
applicable time period for filing a federal habeas action – April 2013 through
February 2015 – he was so incapable of rational thought that he could not appreciate
his legal situation or ascertain that he must take steps to protect his rights.
In fact, other evidence in the record shows that, during the period for filing a
§ 2254 habeas petition, Berks: (1) filed a timely and proper pro se Rule 37 petition
in state court (Doc. 8-10, at 12-19); (2) filed a pro se motion for leave to amend, and
a pro se amended Rule 37 petition with supporting exhibits (id. at 20-23, 25-34); (3)
filed a pro se motion to modify the trial court’s order, (id. at 38-40); and (4)
corresponded with a court clerk on at least two occasions (id. at 24; Doc. 8-11 at
Prior to Berks’s trial, Dr. Paul Deyoub, a forensic psychologist, also evaluated Berks. He
concluded that Berks: (1) had a somatoform disorder and a personality disorder (paranoid and
antisocial); (2) had the capacity to understand the criminal proceedings against him and assist
effectively in his defense; and (3) did not meet the statutory criteria for the affirmative defense of
mental disease or defect. Doc. 8-2, at 105-116. Based on the evaluations of the three mental health
experts, Berks’s trial counsel elected not to pursue a mental-disease-or-defect defense. Berks III,
2016 Ark. 364, at 6-8, 501 S.W.3d at 370-72.
29). Six weeks after the one-year habeas period expired, he filed a pro se Motion for
Belated Appeal (Doc. 8-11), which the Arkansas Supreme Court granted.5 Thus,
Berks’s own actions during and shortly after the applicable time period undercut his
contention that he was mentally incapable of initiating a § 2254 federal action in a
Finally, Berks has not demonstrated that he pursued his rights diligently. All
of his § 2254 habeas claims were available to him at the time of his conviction. After
receiving notice of the state post-conviction denial of his motion for modification,
he waited thirteen months before seeking a belated appeal. During that thirteenmonth period, the deadline passed for filing a timely federal habeas action. He offers
no explanation for failing to pursue his federal rights between April 2013 and
February 2015, the applicable time period. The fact that he chose to pursue a belated
appeal in his state post-conviction proceedings, rather than a federal habeas action,
does not excuse his lack of diligence. See Pace v. DiGuglielmo, 544 U.S. 408, 416
(2005) (refusing to apply equitable tolling during period that petitioner was “trying
Importantly, the Arkansas Supreme Court granted Berks permission to proceed with a
belated appeal because the trial court had failed to timely notify him of its order disposing of his
motion for modification of the order denying him Rule 37 relief. Nothing in Berks’s Motion for
Belated Appeal suggested that his mental and emotional problems were responsible for him
missing the deadline for filing the notice of appeal. See Berks II, 2015 Ark. 234, at 1, 463 S.W.3d
at 290 (“Because Berks was not provided timely notice of an order that disposed of a motion for a
ruling on omitted issues, the motion [for belated appeal] is granted.”); Doc. 8-11, at 5 (Berks’s
argument that the “failure to receive a copy of the order promptly [was] good cause to grant [his]
motion for a belated appeal”).
in good faith to exhaust state remedies,” and observing that petitioner could have
filed a “protective” habeas petition in federal court); Gordon v. Arkansas, 823 F.3d
1188, 1195 n.4 (8th Cir. 2016) (refusing to apply equitable tolling to period
petitioner was attempting to exhaust state-court remedies).
Accordingly, Berks is not entitled to any equitable tolling.
Berks also asserts a claim of “actual and factual innocence.” Doc. 2, at 21;
Doc. 10, at 6-8. First, he argues that, because the state failed to present evidence to
establish his intent to commit a criminal offense when he entered the victim’s
property, he is “factually innocent” of aggravated residential burglary. According to
Berks, the state could not rely on the victim’s beating death to establish the intent
element for burglary because the state relied on the same conduct to support his
conviction for second degree murder. Doc. 2, at 21. Second, he submits an affidavit
from Anthony Jones, dated February 15, 2017, stating that his trial testimony against
Berks was “fabricated.”6 Doc. 10, at 20. Liberally construing these allegations, the
Prior to Berks’s trial, Jones shared a jail cell with him for about three weeks. At Berks’s
trial, Jones testified that Berks said he had beaten someone to death, and had then burned his own
clothes and dumped his tennis shoes in a creek. According to Jones, Berks said he and the victim
had been friends in Minnesota, he had convinced the victim to move to Arkansas, and the victim
had “touched” Berks’s children but “would never touch another child.” Berks I, 2013 Ark. App.
203, at 6, 427 S.W.3d at 102; Doc. 8-5, at 109-36. According to Jones’s affidavit, all of that trial
testimony was false.
Court must now consider whether they constitute a “gateway” claim of actual
innocence that would permit review of Berks’s otherwise untimely claims.
In McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013), the Court held that
“actual innocence, if proved, serves as a gateway through which a habeas petitioner
may pass” to overcome the expiration of the statute of limitations. The Court
cautioned that “tenable actual-innocence gateway pleas are rare,” and reiterated the
“demanding” standard articulated in its previous cases. “[A] petitioner does not meet
the threshold requirement unless he persuades the district court that, in light of the
new evidence, no jury, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.” Id. (citing Schlup v. Delo, 513 U.S. 298, 329 (1995)
and House v. Bell, 547 U.S. 518, 538 (2006)). 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. Finally, the Court has emphasized that the exception is concerned with “factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614,
Berks’s first argument, that the same conduct could not be used to support
both his burglary and murder convictions, is a claim of legal innocence -- not actual
innocence. See Wallace v. Lockhart, 12 F.3d 823, 826-27 (8th Cir. 1994) (actualinnocence exception did not apply to overcome petitioner’s procedural default of
double jeopardy claim). Accordingly, it is not a gateway claim that is cognizable
Berks’s recently obtained affidavit from Jones, which attempts to recant his
trial testimony, falls far short of the high evidentiary standard required to meet the
demanding actual-innocence exception. Witness recantations of trial testimony
“generally are viewed with suspicion.@ Wadlington v. United States, 428 F.3d 779,
784 (8th Cir. 2005).7 Moreover, in evaluating an actual-innocence claim, a federal
habeas court must consider Aall the evidence, old and new, incriminating and
exculpatory,@ and make a Aprobabilistic determination about what reasonable,
properly instructed jurors would do.@ House, 547 U.S. at 538 (internal quotation
Jones’s testimony was only one piece of the evidence against Berks. In
Berks’s direct appeal, the Arkansas Court of Appeals found that there was “ample
testimony and evidence that [the victim’s] death was caused by a prolonged assault
and that [Berks] was the perpetrator.” Berks I, 2013 Ark. App. 203, at 7, 427 S.W.3d
at 103. The investigating officers and paramedics testified that the contents of the
victim’s home had been disturbed, there was blood all through the house, and the
Inherent in any recantation is the admission that the witness Aeither is lying now, was lying
then, or lied both times.@ United States v. Provost, 969 F.2d 617, 620 (8th Cir. 1992). AThe stability
and finality of verdicts would be greatly disturbed if courts were too ready to entertain testimony
from witnesses who have changed their minds, or who claim to have lied at trial.@ United States
v. Grey Bear, 116 F.3d 349, 350 (8th Cir. 1997).
victim’s broken glasses, watch and hearing aid were found on the floor. The state
medical examiner opined that the victim’s death was a homicide caused by bluntforce trauma to the head. DNA evidence showed that shoes belonging to Berks were
consistent with footprints on the victim’s bloody shirt. Several witnesses testified
that the victim was afraid of Berks, and that Berks had mentioned harming the victim
before he was killed. Two witnesses – one of whom was Jones -- testified that Berks
told them he had beaten someone and gave specific details. Id. at 1-7, 427 S.W.3d at
In light of the strong independent evidence of Berks’s guilt, Jones’s affidavit
stating that his trial testimony was “fabricated” is insufficient to meet the actualinnocence standard. See Sawyer v. Whitley, 505 U.S. 333, 349 (1992) (“[L]atter-day
evidence brought forward to impeach a prosecution witness will seldom, if ever,
make a clear and convincing showing that no reasonable juror would have believed
the heart of [the witness’s] account of petitioner’s actions.”)
Accordingly, the actual-innocence exception does not apply to overcome the
expiration of the statute of limitations.
For the foregoing reasons, this Petition should be denied in its entirety as
untimely. IT IS THEREFORE RECOMMENDED THAT:
This 28 U.S.C. § 2254 Petition for a Writ of Habeas Corpus (Doc. 2)
be DENIED, and this habeas action be DISMISSED, WITH PREJUDICE; and
A Certificate of Appealability be DENIED; see 28 U.S.C. § 2253(c);
Rule 11(a), Rules Governing § 2254 Cases in United States District Courts.
DATED this 30th day of November, 2017.
UNITED STATES MAGISTRATE JUDGE
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