Hart v. Black, et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS re 14 insofar as it recommends dismissal of Petitioner's habeas action as untimely. Petitioner's petition for habeas corpus relief is dismissed with prejudice. Signed by Honorable Susan O. Hickey on January 6, 2017. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
OLIVER W. HART, III
CASE NO. 4:15-CV-4063
STEPHANIE POTTER BLACK,
Miller County Prosecuting Attorney; and
RON STOVALL, Miller County Sheriff
Before the Court is the Report and Recommendation filed April 28, 2016, by the
Honorable James R. Marschewski, United States Magistrate Judge for the Western District of
Arkansas. ECF No. 14. Judge Marschewski recommends that Petitioner’s habeas corpus petition
(ECF No. 1) be dismissed with prejudice because it was filed after the expiration of the
applicable statute of limitations. Petitioner has responded with timely objections. ECF No. 16.
The Court finds this matter ripe for consideration.
The underlying events that gave rise to the present matter are admittedly complicated.
However, for the Court’s purposes, the context can be simplified as follows. On April 7, 2009,
Petitioner plead guilty to multiple drug offenses under Ark. Code. Ann. §§ 5-64-401 and 5-64403 in the Miller County, Arkansas, Circuit Court. ECF No. 14-2, p. 1. Petitioner was
subsequently sentenced to ten years’ probation. ECF No. 14-2, p. 1. On September 26, 2014, and
October 9, 2014, petitions for revocation of probation were filed in the Miller County, Arkansas,
Circuit Court based on Petitioner’s arrest in Texas. ECF No. 10-2. The Circuit Court
subsequently directed the Clerk of Court to issue warrants for Petitioner’s arrest and Petitioner
was arrested on or about December 19, 2014. 1 ECF No. 10-2. Petitioner filed the present habeas
action on July 10, 2015, alleging that he submitted an Interstate Agreement on Detainers Act
request in 2008 that Respondents “violated not once . . . but twice.” 2 ECF No. 1, ¶ 12.
Petitioner seeks habeas relief in regard to his 2009 convictions. The Antiterrorism and
Effective Death Penalty Act provides that a one-year statute of limitations will apply in habeas
corpus actions brought by state prisoners. 28 U.S.C. § 2244(d)(1). Under the Act, the statute of
limitations period shall run, in relevant part, from “the date on which the judgment 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). Under Rule 2(a) of the Arkansas Rules of Appellate Procedure –
Criminal, a criminal defendant generally has thirty days from the date of entry of a judgment in
which to file an appeal.
In the present case, the Circuit Court of Miller County, Arkansas, entered final judgments
in Petitioner’s state court criminal cases on July 7, 2009, and July 27, 2009, respectively. 3 ECF
No. 10-1. Petitioner did not appeal those judgments. Pursuant to 28 U.S.C. § 2244 and Rule 2(a)
of the Arkansas Rules of Appellate Procedure – Criminal, the one-year statute of limitations
started to run thirty days after those judgments were entered. Petitioner now seeks habeas corpus
Petitioner has not informed the Court as to the outcome of the state court probation revocation proceedings, but the
Court has discovered that the Circuit Court of Miller County, Arkansas, subsequently found Petitioner in violation
of a condition of his probation and sentenced him to a substantial period of incarceration. Sentencing Orders entered
on July 18, 2016, in state court cases 46CR-02-570, 46CR-02-162, and 46CR-03-627 reflect that Petitioner was
sentenced to two-hundred and forty (240) months’ incarceration in each case, to run consecutively. According to
state court records, Petitioner has filed an appeal in the Arkansas Court of Appeals, case number CR-16-856.
Petitioner also bases his petition on alleged ineffective assistance of counsel in regard to his 2009 convictions.
However, upon examination of the documents and briefs Petitioner has filed in the Arkansas Court of Appeals, case
no. CR-16-856, it appears that Petitioner may address those issues in his state appellate case. As such, the Court will
not address Petitioner’s arguments regarding ineffective assistance of counsel in 2009. Petitioner also seeks habeas
relief on ineffective assistance of counsel grounds in regard to an attorney who represented Petitioner sometime in
2015 in Petitioner’s probation revocation proceedings. However, the Court will not address this issue as Petitioner is
currently challenging the grounds upon which his parole was revoked in his appeal to the Arkansas Court of
One of the Orders was amended on September 24, 2014, to correct a clerical error.
relief more than five years after the statute of limitations expired. As such, it is clear that
Petitioner’s habeas action is time-barred under the one-year statute of limitations and therefore
should be dismissed as untimely unless there is cause for equitable tolling.
“Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). However,
“[a]ny invocation of equity to relieve the strict application of a statute of limitations must be
guarded and infrequent, lest circumstances of individualized hardship supplant the rules of
clearly drafted statutes.” Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001) (quoting Harris v.
Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). Equitable tolling may be appropriate when the
petitioner has been lulled into inactivity. Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir.
2000). Courts have found that “[e]ven in the case of an unrepresented prisoner alleging a lack of
legal knowledge or legal resources, equitable tolling has not been warranted.” Id. Likewise,
“[i]neffective assistance of counsel generally does not warrant equitable tolling.” Beery v. Ault,
312 F.3d 948, 950 (8th Cir. 2002).
Here, when prompted by the habeas form petition to explain why this action is not barred
by the one-year statute of limitations, Petitioner directed the Court to a letter he included with his
petition and stated that “[t]his is my hope for justice for the violation of my rights.” ECF No. 1, ¶
18. In that letter, written from the Miller County Detention Center, Petitioner appears to seek
equitable tolling based on the allegation that he does not currently have access to a law library.
However, that does not explain Petitioner’s failure to timely file his petition within the one-year
statute of limitations.
In his Objection, Petitioner also requests the statute of limitations be tolled based on
allegations that his appointed counsel failed to advise him of his (1) appellate rights, (2) rights
under Rule 37 of the Arkansas Rules of Criminal Procedure, and (3) the applicable statute of
limitations. ECF No. 16. Petitioner also seeks tolling based on the assertion that he is unfamiliar
with the law or legal procedures. These arguments are unpersuasive. As shown above, a
petitioner’s lack of legal knowledge or allegations of ineffective assistance of counsel generally
are not grounds for equitable tolling and Petitioner has not offered any evidence or alleged facts
sufficient to convince the Court otherwise. Therefore, the Court finds that Petitioner has failed to
show that he has been diligent in pursuing his rights or that extraordinary circumstances have
kept him from seeking habeas relief. As such, the Court finds no grounds for equitable tolling
and concludes that Petitioner’s habeas corpus action should be dismissed with prejudice.
For the reasons stated above, the Court overrules Plaintiff’s objections and adopts the
Report and Recommendation (ECF No. 14) insofar as it recommends dismissal of Petitioner’s
habeas action as untimely. Furthermore, the Court declines to adopt the Report and
Recommendation in any other respect because the conclusion that Petitioner’s habeas petition is
untimely is determinative. Accordingly, Petitioner’s petition for habeas corpus relief (ECF No.
1) is hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, on this 6th day of January, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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