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)

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