RECOMMENDED DISPOSITION

BETH DEERE, Magistrate Judge.

I. Procedure for Filing Objections

The following Recommended Disposition ("Recommendation") has been sent to Judge J. Leon Holmes. Any party may file written objections with the Clerk of Court within fourteen (14) days of filing this Recommendation. Objections must be specific and must include the factual or legal basis for the objection. An objection to a factual finding must identify the finding of fact believed to be wrong and describe the evidence that supports that belief.

By not objecting, any right to appeal questions of fact may be waived. And, if no objections are filed, Judge Holmes can adopt this Recommendation without independently reviewing the record.

II. Background

Petitioner Stewart L. Gilbert entered a negotiated plea of guilty to one count of first-degree murder, in violation of Arkansas Code Annotated § 5-10-102 (Repl. 1997), and one count of aggravated robbery, in violation of § 5-12-103 (Rep. 1997). He was sentenced to a term of life imprisonment on each count with the sentences to run concurrently. (#7-1) Mr. Gilbert is not eligible for parole unless his sentence is commuted to a term of years by executive clemency. ARK. CODE ANN. § 16-93-607(c)(1)(1987).

As a result of his guilty plea, Mr. Gilbert was not entitled to file a direct appeal. ARK. R. APP. P. CRIM. 1(a). He has not initiated any other post-conviction proceedings in state court.1

In his petition, Mr. Gilbert argues that his sentences violate the Eighth Amendment, because he was seventeen years old when he committed the offenses. He also claims that his sentences violate Arkansas law and brings several claims of ineffective assistance of counsel. He states that his guilty pleas were involuntary because he did not possess an understanding of the law in relation to the facts, and he was not aware of the consequences of his plea. (#7 at 3-4)

Respondent asserts that Mr. Gilbert's claims are barred by the statute of limitations or, alternatively, are procedurally defaulted. For the reasons set forth below, Mr. Gilbert's habeas petition should be dismissed, without prejudice.

III. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year limitations period for a state prisoner to file a federal habeas corpus petition under 28 U.S.C. § 2254. 28 U.S.C. § 2244(d)(1). The limitations period begins to run from the latest of, "the date on which the judgement became final by the conclusion of direct review or the expiration of the time limit for seeking such review."

Here, Mr. Gilbert's judgment became final on October 21, 2001. Camacho v. Hobbs, 774 F.3d 931, 935 (8th Cir. 2015). He did not file his petition until November 27, 2015, many years after the statute of limitations expired. Accordingly, there is no dispute that, under 28 U.S.C. 2244(d)(1)(A), Mr. Gilbert's habeas case is barred by the statute of limitations.

Mr. Gilbert argues, however, that his petition falls under a provision of the statute that allows a habeas petition to be initiated within one year of, "the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2244(d)(1)(C).

Mr. Gilbert's claim assumes that Miller v. Alabama, 132 S.Ct. 2455 (2012) and Montgomery v. Louisiana, 136 S.Ct. 718 (2016) apply to the facts of his case. Respondent contends, however, that Miller and Montgomery are not applicable here because the Arkansas statute under which he was sentenced does not impose a mandatory sentence of life without parole.

In Miller, the United States Supreme Court considered whether Arkansas and Alabama statutes, which carried mandatory minimum punishment of life without parole, violated the Eighth Amendment's prohibition against "cruel and unusual punishment" when applied to juvenile offenders. The Miller Court relied on its reasoning in Roper v. Simmons, 543 U.S. 551 (2005)2 and Graham v. Florida, 560 U.S. 48 (2010)3, in determining that the Eighth Amendment prohibits a mandatory sentence of life without parole for those who were under age 18 at the time of their crimes. Miller, 132 S. Ct. at 2460 (emphasis added).

On January 25, 2016, the Supreme Court decided Montgomery, holding that Miller was a substantive rule of constitutional law that retroactively applies in post-conviction proceedings. Montgomery, 136 S.Ct. at 736. Mr. Gilbert claims that the time for filing his habeas petition did not begin to run until the Supreme Court decided Montgomery, and that, consequently, his petition is not barred by the statute of limitations.

Mr. Gilbert was charged with one count of capital murder, one count of aggravated robbery, one count of residential burglary, and three counts of theft of property. (#12-2) He pleaded guilty to one count of first-degree murder and one count of aggravated robbery. (#7-1) The remaining charges were nolle prosed. (Id.) At the time, the applicable sentencing range for both first degree murder and aggravated robbery (class Y felonies) was ten-to-forty years or life in prison. (#12-3) See ARK. CODE ANN. §§5-10-102(c), 5-12-103(b), and 5-4-401(a)(1) (Repl. 1997).

Because there was a sentencing range applicable to both offenses and because neither imposed a mandatory sentence of life without parole, Miller does not apply to Mr. Gilbert's case. See U.S. v. Jefferson, 816 F.3d 1016, 1019 (8th Cir. 2016)(declining to apply Miller to a 600-month sentence after determining that Miller does not categorically prohibit imposing a sentence of life without parole on juvenile offenders, but rather, bars mandatory penalty schemes that prevent consideration of distinctive attribute of youth); see also Murry v. Hobbs, 2013 Ark. 64, 4 (2013) (upholding appellant's life sentence because it was imposed from a range of possible punishments and, therefore, not "illegal under Miller"); Brown v. Hobbs, 2014 Ark. 267, 6 (2014) (holding that ARK. STAT. ANN. §41-901(1)(a) not prohibited by Miller because it provides a range of sentencing, from ten to forty years, or life, and life-without-parole provision is not mandatory).

Mr. Gilbert's state sentence does not fit within the new standards announced in Miller and Montgomery. Since no new rule of law applies to the facts of Mr. Gilbert's case, § 2244(d)(1)(C) does not apply, and the statute of limitations clock did not begin to run anew after Montgomery was decided. His habeas petition is barred by the statute of limitations unless the statute was tolled.

A. Tolling

The time during which a properly filed application for state post-conviction or other collateral review is pending does not count toward the limitations period. 28 U.S.C. § 2244(d)(2). Here, however, Mr. Gilbert did not initiate any state post-conviction proceedings in order to toll the statute of limitations.

The limitations period in 28 U.S.C. § 2244(d)(1) is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560 (2010). In order to benefit from equitable tolling, however, a petitioner must show that he has pursued his rights diligently but that some extraordinary circumstances stood in his way and prevented a timely filing. Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814 (2005)).

Here, Mr. Gilbert does not allege that extraordinary circumstances prevented him from filing a timely habeas petition. He does not point to any action or circumstance attributable to the State — or to any other cause — that prevented him from bringing a timely habeas petition. Consequently, he is not entitled to equitable tolling.

B. Actual Innocence

In McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1928 (2013), the United States Supreme Court held that actual innocence, if proved, serves as a gateway through which a petitioner may pass to overcome the expiration of the statute of limitations. The Court cautioned, however, that "tenable actual-innocence gateway pleas are rare," and "a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. (quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851 (1995)). The actual-innocence exception requires a habeas petitioner to come forward with "new reliable evidence" which was "not available at trial through the exercise of due diligence." Schlup, 513 U.S. at 324; Kidd v. Norman, 651 F.3d 947, 951-53 (8th Cir. 2011), cert. denied, 133 S.Ct. 137 (2012).

Mr. Gilbert's claim here rests on his assertion that, under the reasoning of Miller and Montgomery, his sentence violates the Eighth Amendment, and the State must either re-sentence him or make him eligible for parole. (#14 at p. 4) As explained, however, Miller and Montgomery are not applicable to Mr. Gilbert's case, and he has not come forward with any new evidence establishing actual innocence so as to overcome the expiration of the statute of limitations.

IV. Certificate of Appealability

When entering a final order adverse to a petitioner, the Court must issue or deny a certificate of appealability. See Rule 11 of the Rules Governing Section 2254 Cases in the United States District Court. A certificate of appealability may issue only if Mr. Gilbert has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253 (c)(1)-(2). In this case, after considering Mr. Gilbert's petition and his reply to the response, he has not provided a basis for the Court to issue a certificate of appealability.

V. Conclusion

Mr. Gilbert's petition is time-barred. Accordingly, the Court recommends that his petition for writ of habeas corpus (#1) be DISMISSED, without prejudice. The Court further recommends that no certificate of appealability be issued.