Roy v. Kelley

Filing 11

ORDER approving and adopting the 7 recommended disposition as this Court's findings, with the additional comments made herein; and dismissing with prejudice 2 Dallas Gene Roy's petition for writ of habeas corpus. Signed by Judge J. Leon Holmes on 12/1/2017. (ljb)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION DALLAS GENE ROY ADC #134765 VS. PETITIONER CASE NO. 5:17CV00216-JLH-BD WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT ORDER United States Magistrate Judge Beth Deere has recommended that the habeas petition of Dallas Gene Roy filed pursuant to 28 U.S.C. § 2254 be dismissed because it is barred by the one-year period of limitations in 28 U.S.C. § 2244(d)(1). In response, Roy has argued that he is entitled to equitable tolling, citing McQuiggin v. Perkins, 569 U.S. 383, 133 S. Ct. 1924, 185 L. Ed. 2d 1019 (2013). There, the Supreme Court held that actual innocence, if proved, serves as grounds for equitable tolling of the statute of limitations in section 2244(d)(1). Id. at 1928. The Court cautioned, however, “that tenable actual-innocence gateway pleas are rare[.]” Id. Furthermore, while lack of diligence does not absolutely bar tolling of the statute of limitations based on actual innocence, timing of the petition is a factor bearing on the reliability of the evidence purporting to show actual innocence. Id. Roy’s objections discuss the law related to actual innocence but present nothing to show how he could prove in his case that he was actually innocent of the crime for which he has been convicted. He has submitted no affidavits or other evidence, nor has he alleged facts that would support a claim of actual innocence. Furthermore, he has delayed more than seven years after the statute of limitations expired before filing the current petition, which bears on the credibility of his claim. The Court has carefully reviewed the recommended disposition filed by Magistrate Judge Beth Deere. After careful consideration of the recommendation and Roy’s timely objections, and after a de novo review of the record, the Court concludes that the recommendation should be and hereby is approved and adopted as this Court’s findings, with the additional comments made hereinabove. Dallas Gene Roy’s petition for writ of habeas corpus is DENIED and dismissed with prejudice. Document #2. IT IS SO ORDERED this 1st day of December, 2017. ________________________________ J. LEON HOLMES UNITED STATES DISTRICT JUDGE

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