Trice v. State of Arkansas

Filing 5

ORDER ADOPTING 3 REPORT AND RECOMMENDATIONS in its entirety and dismissing with prejudice 1 Petition for Writ of Habeas Corpus filed by Ellis Trice. Signed by Honorable P. K. Holmes, III on January 24, 2012. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
ELLIS TRICE
v.

PETITIONER
Case No. 2:11-CV-02158

STATE OF ARKANSAS

RESPONDENT

ORDER
Currently before the Court is the Report and Recommendations (Doc. 3) filed in this case on
December 13, 2011, by the Honorable James R. Marschewski, Chief United States Magistrate Judge
for the Western District of Arkansas. Also before the Court are Petitioner’s Objections. (Doc. 4).
The Court has reviewed this case and, being well and sufficiently advised, finds as follows:
Plaintiff’s objections offer neither law nor fact requiring departure from the Report and
Recommendations. Plaintiff argues, in his objections, that his grounds for default on his Rule 37
Petition in state court are that he has been repeatedly moved during his period of incarceration and,
therefore, has not timely received court documents pertinent to his case. However, even if
Petitioner’s moves may have provided cause for a default in filing his Rule 37 petition,1 the Court
finds that his Petition in this Court is still barred by the applicable statute of limitations. Petitioner
was seven months late in filing his Petition with this Court. Petitioner has not provided the Court
with all the relevant dates of his moves, but the Court nevertheless finds that any moves during the
relevant time period would not amount to “extraordinary circumstances” which made it impossible
for Petitioner to file his petition on time. Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001) (quoting

1

As the Court decides herein that Petitioner’s claim is barred on alternative grounds, the
Court assumes, without making a finding, that Petitioner might have grounds for a default in
filing his Rule 37 petition in state court.

Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000)). Petitioner complains specifically that he
did not receive a transcript until May 25, 2010. The Arkansas Court of Appeals had already issued
its mandate on January 15, 2010, which is the date that the judgment became final for purposes of
the statute of limitations. The Court cannot find that the delay in receiving a transcript prevented
Petitioner from timely filing his petition in this Court, as the statute of limitations allowed for
Petitioner to file his claim until January of 2011. Furthermore, “lack of access to a trial transcript
does not preclude a petitioner from commencing post-conviction proceedings and therefore does not
warrant equitable tolling.” Id. at 806.
The Court finds, therefore, that the Report and Recommendation is proper and should be and
hereby is ADOPTED IN ITS ENTIRETY. Accordingly, for the reasons stated in the Magistrate
Judge’s Report and Recommendations, and for the reasons outlined above, IT IS ORDERED that
Petitioner’s Habeas Corpus Petition (Doc. 1) filed under 28 U.S.C. § 2254 is DISMISSED WITH
PREJUDICE.
IT IS SO ORDERED this 24th day of January, 2012.

/s/P. K. Holmes, III
P.K. HOLMES, III
UNITED STATES DISTRICT JUDGE