Wilmoth v. Hobbs, Interim Director, Arkansas Department of Correction

Filing 15

ORDER ADOPTING 13 REPORT AND RECOMMENDATIONS and dismissing case with prejudice. Signed by Honorable Jimm Larry Hendren on August 8, 2011. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

MONTY WILMOTH

PETITIONER

v.

Civil No. 10-5210

RAY HOBBS, Director
Arkansas Department of Corrections

RESPONDENT

O R D E R
NOW on this 8th day of August 2011, comes on for consideration
the Report and Recommendation (document #13) of the Magistrate Judge,
filed

on

January

25,

2011,

and

petitioner’s

(document #14), filed on February 14, 2011.

objections

thereto

The Court, being well

and sufficiently advised, finds and orders as follows:

1.

Before this Court is petitioner Monty Wilmoth's Habaes

Corpus petition which was filed on November 1, 2010, pursuant to 28
U.S.C.

§

2254.

By

way

of

background,

the

Court

notes

the

following:
(a) On January 28, 2008, Wilmoth pled guilty to manufacturing
a

controlled

substance

(methamphetamine)

and

possession

of

a

controlled substance with intent to deliver (marijuana), and was
sentenced to 240 months (20 years) in the Arkansas Department of
Corrections with an additional 120 months (10 years) suspended
imposition of sentence.

The Judgement and Commitment Order was

filed on February 1, 2008.

(b)

On September 9, 2010, petitioner filed a motion to

withdraw the guilty plea he entered on January 28, 2008.
(c)

On September 23, 2010, the Benton County Circuit Court

issued an order denying petitioner's motion, stating that the
motion was untimely and that the court was without jurisdiction to
hear the motion.
(d)

The

petitioner

filed

the

current

Habeas

Motion

on

November 1, 2010 and has alleged ineffective assistance of counsel,
prosecutor

misconduct,

and

that

Arkansas

Rule

of

Criminal

Procedure, Rule 26.1 is constitutionally deficient.
2.

The Report and Recommendation (hereinafter "R&R") now

before the Court makes the following recommendations:
(a)

The petitioner's claim is not timely because petitioner

entered his plea on January 28, 2008 but did not file the current
habeas petition until November 1, 2010.

The Antiterrorism and

Effective Death Penalty Act (AEDPA), 104-132, 110 Stat. 1214
(1996), established a one year statute of limitations for federal
habeas corpus petitions brought by state prisoners.
2244(d)(1).

28 U.S.C. §

(1)

The limitation period runs from the latest of:

(2)

(3)

the date on which the judgment of conviction
becomes final;
the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is
removed, if the movant was prevented from making a
motion by such governmental action;
the date on which the right asserted was initially
recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or

(4)

the date on which the facts supporting the claim or
claims presented could have been discovered through
the exercise of due diligence.

While the limitation period may be equitably tolled under certain
circumstances, the R & R concludes that the issues raised by the
petitioner do not merit equitable tolling.
(b)

Even

if

the

petition

had

been

timely

filed,

the

petitioner's claim is without merit because he failed to exhaust
his state remedies.1
3.

Petitioner has filed lengthy objections to the R & R in

which he has basically reiterated his arguments previously made.
The Court finds those objections offer neither law nor fact requiring
departure from the R & R and the same should and will be overruled.

4.

For the reasons set forth in the Magistrate Judge's

thorough and well-reasoned analysis, the R&R will be approved and
adopted and the instant petition should be dismissed with prejudice
for failure to demonstrate cause for his procedural default.
IT

IS

THEREFORE

ORDERED

that

Petitioner's

Statement of

Objections (document #14) is overruled.
IT IS FURTHER ORDERED that the Report and Recommendation
(document #13) is adopted in toto.

1

Despite the clear procedural bars of petitioner's untimely
filing and failure to exhaust his state remedies, the R & R
continues its analysis of petitioner's claims and finds that all
claims, except possibly petitioner's speedy trial claim, have no
merit.

IT IS FINALLY ORDERED that instant petition is dismissed with
prejudice.
IT IS SO ORDERED.
/s/Jimm Larry Hendren
HON. JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE