Phillips 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 12/7/2017. (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 James M. Moody, Jr. 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 Lester Phillips (“Phillips”), an Arkansas Department of Correction (“ADC”)
inmate. Doc. 2. Before addressing Phillips’s habeas claims, the Court will review
the procedural history of the case in state court.
On October 30, 2013, a Jefferson County jury convicted Phillips of seconddegree murder. He was sentenced, as a habitual offender, to forty years of
imprisonment in the ADC. Doc. 7-2.
Phillips appealed to the Arkansas Court of Appeals, which affirmed his
conviction on August 26, 2015. Phillips v. State, 2015 Ark. App. 419, 467 S.W.3d
742. He then had eighteen days, until September 13, 2015, to file a petition for
review with the Arkansas Supreme Court. Ark. Sup. Ct. R. 2-4(a). Because
September 13 fell on a Sunday, the deadline became Monday, September 14, 2015.
See Ark. R. App. P.-Crim. 17. Phillips did not file a petition for review with the
Arkansas Supreme Court.
On October 16, 2015, Phillips filed a timely pro se Rule 37 petition in the trial
court, arguing that his trial counsel was constitutionally ineffective for failing to
present any mitigating testimony during the sentencing phase of the trial. Doc. 7-4.
Phillips signed the Rule 37 petition, but he did not include an affidavit verifying that
it was true, correct and complete, as required by Ark. R. Crim. P. 37.1(c).
On February 3, 2016, the trial court entered an order denying Rule 37 relief
because: (1) Phillips had failed to comply with Rule 37.1(c)’s verification
requirement; and (2) his claim was without merit. Doc. 7-6.
On February 26, 2016, Phillips filed a notice of appeal of the denial of his
Rule 37 petition. Doc. 7-7. Under Arkansas’s procedural rules, he had ninety days,
until May 26, 2016, to file the record with the clerk of the Arkansas Supreme Court.
See Ark. R. App. P.-Crim. 4(b). In his notice of appeal, Phillips stated that: (1) he
had requested that the transcript be prepared and sent to the Arkansas Supreme
Court; and (2) he was simultaneously filing a request for leave to proceed in forma
pauperis. Id. at 2. No in forma pauperis petition was ever filed, and Phillips did not
file the record with the Arkansas Supreme Court by the May 26, 2016 deadline. Doc.
7-8 (trial court docket sheet); Doc. 7 at 3 n.2.
On January 9, 2017, Phillips filed this § 2254 habeas action.1 He argues: (1)
his trial counsel was constitutionally ineffective; and (2) the trial court improperly
denied his Rule 37 post-conviction petition without appointing him counsel or
holding an evidentiary hearing. Docs. 2 & 3.
In her Response, Respondent argues that Phillips’s claims should be dismissed
because: (1) the § 2254 Petition is time-barred; (2) his claims are procedurally
defaulted; (3) his claim regarding the Rule 37 post-conviction proceeding is not
Because Phillips does not state the date he placed his § 2254 Petition in the prison mail
system, see Doc. 2 at 12, he is not entitled to the benefit of the “prison mailbox rule.” Rule 3(d),
Rules Governing § 2254 Cases in United States District Courts (timely inmate filing may be shown
“by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which
must set forth the date of deposit [in the institution’s internal mailing system] and state that firstclass postage has been prepaid”); Henderson-El v. Maschner, 180 F.3d 984, 985-86 (8th Cir. 1999)
(federal habeas petitioner cannot avail himself of the benefits of the prison mailbox rule unless he
proffers evidence of the date that he delivered his petition to prison officials for mailing). However,
even if Phillips were allowed to receive the few days granted by the prison mailbox rule, it would
in no way make his § 2254 Petition timely.
cognizable; and (4) his ineffective-assistance claims are without merit. Doc. 7.
Phillips has filed a Reply. Doc. 9.
Because all of Phillips’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 August 26, 2015, the Arkansas Court of Appeals affirmed Phillips’s
convictions. Because he elected not to seek discretionary review from the Arkansas
Supreme Court, his convictions became “final” on September 15, 2015, when he
could no longer seek review from that Court.2 Phillips then had one year to initiate
this § 2254 action. Because he waited sixteen months -- until January 9, 2017 -- to
initiate this action, his habeas Petition is barred as untimely unless the Court
determines that statutory or equitable tolling applies.
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). A Rule 37
post-conviction petition that fails to satisfy Arkansas’s verification requirement
imposed by Rule 37.1(c) is not “properly filed” for tolling purposes under §
2244(d)(2). Nelson v. Norris, 618 F.3d 886, 891-92 (8th Cir. 2010); Walker v.
Norris, 436 F.3d 1026, 1030-32 (8th Cir. 2006). Because Phillips’s Rule 37 petition
was not verified, it was not “properly filed” under § 2244(d)(2) and had no tolling
effect. This conclusion is not altered by the fact that the state trial court also
addressed the merits of Phillips’s Rule 37 claims. See Runyan v. Burt, 521 F.3d 942,
944-45 (8th Cir. 2008) (state post-conviction petition that did not comply with state
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).
filing requirements was not “properly filed” for federal tolling purposes even though
state courts addressed merits).
Thus, the one-year federal habeas statute of limitations was not tolled during
the pendency of Phillips’s Rule 37 proceeding.
Phillips argues that he is entitled to the benefit of equitable tolling of the oneyear limitations period to save his otherwise untimely claims. 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).
Phillips has not demonstrated that he pursued his rights diligently. After his
conviction was affirmed in August 2015, he filed a procedurally defective Rule 37
post-conviction petition, failed to perfect his appeal of the trial court’s denial of that
petition, and then waited almost one year before initiating this § 2254 action. The
fact that he was trying to pursue post-conviction relief in state court during this time
does not excuse him from diligently taking the necessary steps to preserve and timely
file his federal habeas claims. See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)
(refusing to apply equitable tolling during period that petitioner was “trying 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); Runyan, 521 F.3d at 943-44 (rejecting
the applicability of equitable tolling where “properly verifying the Iowa [postconviction relief] application and including the requisite filing fee were entirely
within Runyan's control” and he “could have protected himself” during their
pendency by filing a timely federal habeas petition and seeking “stay and
abeyance”); Walker, 436 F.3d at 1030-31.
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).
Liberally construed, Phillips’s habeas papers also argue that, because he was
without counsel in his state post-conviction proceedings, “extraordinary
circumstances” exist to justify equitable tolling pursuant to Martinez v. Ryan, 566
U.S. 1 (2012).3 See Doc. 9 at 7-8. However, courts have uniformly held that, while
Martinez changed the law regarding federal habeas review of procedurally defaulted
Under some circumstances, Martinez permits federal habeas review of a procedurally
defaulted claim of ineffective assistance of trial counsel, where the default was caused by the
absence or ineffective assistance of counsel during state post-conviction proceedings. Martinez,
566 U.S. at 13-14.
claims, the decision does not constitute an “extraordinary circumstance” warranting
equitable tolling of the one-year statute of limitations for filing a timely § 2254
habeas action. Lombardo v. United States, 860 F.3d 547, 555-61 (7th Cir. 2017)
(“declin[ing] to recognize Martinez’s framework as a means of establishing
extraordinary circumstances for the purposes of equitable tolling”); Arthur v.
Thomas, 739 F.3d 611, 631 (11th Cir. 2014) (holding that “the reasoning of the
Martinez rule does not apply to [the one-year] limitations period in § 2254 cases or
any potential tolling of that period”); Parkhurst v. Wilson, 525 F. App’x 736, 738
(10th Cir. 2013) (habeas petitioner’s “recent discovery of a relevant legal defense”
based on Martinez does not provide a basis for equitable tolling). Because Martinez
provides no basis for extending the limitations period, Phillips is not entitled to any
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 7th day of December, 2017.
UNITED STATES MAGISTRATE JUDGE
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