BARRY A. BRYANT, Magistrate Judge.
Petitioner, ROBERT REDDIN, an inmate confined in the Arkansas Department of Corrections, Wrightsville Unit, filed this Petition for Writ of a Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1 and 4. The Petition was referred for findings of fact, conclusions of law and recommendations for the disposition of the case.
On September 17, 2007, in the Circuit Court of Union County, Arkansas, Petitioner was convicted by a jury of possession of methamphetamine and possession of drug paraphernalia. Petitioner was sentenced to consecutive fifteen (15) year sentences of imprisonment. His conviction was affirmed by the Arkansas Court of Appeals on November 5, 2008. See Reddin v. State, CACR 08-596, 2008 WL4821005, at *1 (Ark. App. 2008). Petitioner did not seek review by the Arkansas Supreme Court. ECF No. 4, p. 2.
On December 8, 2008, he filed a petition for post-conviction relief pursuant to ARK. R. CRIM. P. 37.1 in the Circuit Court of Union County, Arkansas. This Rule 37.1 petition alleged the following: (1) ineffective assistance of counsel in failing to introduce the testimony of two witnesses who could have testified the drugs in question were not Petitinoer's; (2) illegal sentence; and (3) Petitioner's mental incompetence to stand trial. ECF No. 4 p. 3. The post-conviction petition was denied by the trial court without a hearing. ECF No. 4, p. 3. Petitioner timely appealed the denial of his post-conviction petition to the Arkansas Supreme Court. On March 18, 2009, the Arkansas Supreme Court returned Petitioner's brief for corrections and directed him to re-file the brief on or before May 6, 2009. ECF No. 9-7. Petitioner was reminded of his obligation to file a corrected brief by letter from the Arkansas Supreme Court on April 23, 2009. ECF No. 9-7. Petitioner failed to file the corrected brief, and the State moved to dismiss the appeal. On January 14, 2010, the appeal was dismissed for failure to file a brief. ECF No. 9-7.
On January 7, 2011
The Respondent asserts that the claims in the Petition are time barred by 28 U.S.C. §2244(d)(1)(A), procedurally defaulted, and without factual merit. ECF No. 9 p. 3.
Section 2244(d)(2) also provides that the time during which a "properly filed application" for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation. The United States Court of Appeals for the Eighth Circuit has also held that "the one-year period is equitably tolled when `extraordinary circumstances' have made it impossible for the habeas petitioner to file a timely federal petition." Gray v. Gammon, 283 F.3d 917, 918 (8th Cir. 2002).
The relevant triggering date for the one-year statute of limitations in this case is "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). The United States Supreme Court has recently addressed this provision as it relates to the finality of a state court conviction.
Gonzales v Thaler, ___ U.S._____, 132 S.Ct. 641, 653-54 (2012)(emphasis added). In other words, where a state prisoner does not seek a writ of certiorari to the United States Supreme Court, his conviction becomes final when the time for pursuing his state court direct appeal expires.
In the instant case, Petitioner was convicted on September 17, 2007. His conviction was affirmed on direct appeal on November 5, 2008 by the Arkansas Court of Appeals. Under Arkansas law, Petitioner then had eighteen (18) calendar days to seek review by the Arkansas Supreme Court. See ARK.SUP.CT. R. 2-4(a). He did not seek such review. and his conviction became final when the time for review expired on November 24, 2008. He had one-year from that date, or until November 23, 2009, in which to file his Petition for Writ of a Habeas Corpus pursuant to 28 U.S.C. § 2254. The instant Petition was filed on January 7, 2011, and was thus untimely unless the one-year period was tolled.
Section 2244(d)(2) provides that the time during which a "properly filed application" for State post-conviction review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation. The limitation period resumes when the mandate affirming the trial court's denial of post-conviction relief is issued by the state supreme court. See Lawrence v. Florida, 549 U.S. 327, 331 (2007).
Petitioner filed his state petition for post-conviction relief pursuant to ARK. R. CRIM. P. 37.1 on December 8, 2008. Accordingly, fourteen (14) days elapsed between his conviction becoming final and the filing of this state court post-conviction petition. This petition was dismissed by the trial court, and Petitioner timely appealed to the Arkansas Supreme Court. The Arkansas Supreme Court dismissed Petitioner's state court action on January 14, 2010, for failure to file a brief as directed by that court. ECF No. 9-7. Thus, the one-year statute of limitations was tolled until January 14, 2010, but on that date, the one-year period for filing the instant Petition began to run again. He filed the instant Petition on January 7, 2011, some 358 days later. When the Court considers the fourteen (14) days that elapsed between the time his conviction became final and the filing of the state court post-conviction petition, a total of 372 days elapsed between the date his conviction became final and the filing of the instant petition. The instant Petition is therefore untimely, unless some other tolling provision applies.
While Petitioner has not raised the issue of equitable tolling of the one-year statute of limitations, the Court will address the issue. The United States Supreme court has held that the one-year statute of limitations in § 2244(d) is subject to the doctrine of equitable tolling. See Holland v Florida, ___ U.S. ___, 130 S.Ct. 2549, 2560 (2010). However, equitable tolling is proper only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time. See Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001), see, e.g., Cross-Bey v. Gammon, 322 F.3d 1012, 1015 (8th Cir. 2003), quoting Flanders v. Graves, 299 F.3d 974, 976 (8th Cir. 2002), cert. denied, 537 U.S. 1236 (2003)("[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."). "`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 circumstance stood in his way.' Equitable tolling is `an exceedingly narrow window of relief.'" Riddle v. Kemna, 523 F.3d 850, 857 (8th Cir. 2008)(citations omitted), abrogated in part by Gonzales v Thaler, ___ U.S._____, 132 S.Ct. 641, 653-54 (2012).
Here, Petitioner raises no "extraordinary" circumstances. In fact, the record shows that at all times relevant to his state post-conviction proceeding, Petitioner was in control of the circumstances. He was aware of the rulings of the state courts and responded to those rulings. He does not assert that some circumstance beyond his control made it impossible to file the instant Petition before the expiration of the one-year limitation period. Further, Petitioner makes no assertion the Respondent took some action preventing him from timely pursuit of his claims in this Court. Accordingly, equitable tolling is inapplicable in this case, and the instant Petition should be dismissed as not timely filed.
"Exhaustion requires fair presentment of a claim to the state courts for initial adjudication . . ." Clemons v. Luebbers, 381 F.3d 744, 751 (8
In the direct appeal of his criminal conviction, Petitioner did not allege any constitutional violation regarding either the testimony of Lonnie Miller or the illegality of his sentence. His state post-conviction petition did allege that trial counsel was ineffective for failing to call Lonnie Miller as a witness he did not allege any Due Process or Confrontation Clause violation as he does here. Further, his appeal of the trial court's denial of that state petition was utlimately dismissed when Petitioner failed to comply with the Rules of the Arkansas Supreme Court by failing to file a brief as directed. As a result, he failed to "fairly present" these claims to the state courts. Petitioner failed to exhaust his available state court remedies regarding his claims related to witness Lonnie Miller, and the instant Petition should be dismissed on this ground.
In this case, Petitioner is now barred from filing a second state post-conviction petition rasing the issues raised in the instant Petition. See ARK. R. CRIM. P. 37.2(b). Further, the claims raised here are not cognizable in a state habeas corpus proceeding pursuant to ARK. CODE ANN. § 16-113-103 (Repl. 2006). See Noble v. Norris, 243 S.W.3d 260, 262 (Ark. 2006) ("Unless a petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue . . . Moreover, a habeas proceeding does not afford a prisoner an opportunity to retry his or her case and it is not a substitute for direct appeal or postconviction relief."). Petitioner alleges no cause for his failure to present these claims to the state courts. He is therefore procedurally barred from presenting them in this Court, unless he can show a fundamental miscarriage of justice or demonstrate "actual innocence."
A federal habeas petitioner who has procedurally default or otherwise barred may be able to proceed with a federal habeas petition if he establishes (1) new and reliable evidence that was not presented to the state courts, and (2) that in light of the new evidence it is more likely than not that no reasonable juror would have convicted him. See Weeks v. Bowersox, 119 F.3d 1342, 1351 (8
Here, Petitioner alleges no new evidence regarding his actual innocence. In fact, by his own submissions he shows the evidence he now wishes to present was available and known to him at the time of his trial. According to the materials submitted by Petitioner, Lonnie Miller was available and willing to testify at the trial in the underlying case. Petitioner in his state post-conviction proceeding alleged he say Mr. Miller and a second witness leave the courtroom during the trial. ECF No. 9-3. Clearly, Petitioner knew of the evidence and testimony to be offered by Mr. Miller at the time of his trial. Further, Petitioner in his state post-conviction pleadings, alleged his counsel was ineffective for failing to keep Mr. Miller in the courthouse after he was released from a state trial subpoena. Petitioner has wholly failed to allege any newly-discovered evidence which would allow this Court to now consider his claims in this regard. Petitioner has procedurally defaulted and his Petition should be dismissed.
Petitioner was charged as a habitual criminal pursuant to ARK. CODE ANN. § 5-4-501. ECF No. 9-1, p. 3. Evidence of his prior convictions were introduced during the sentencing phase of the trial. ECF No. 9-2, p. 62-64. The Court gave the jury an instruction regarding enhanced sentencing under the habitual criminal statute. ECF No. 9-2 p. 64-65. The enhanced penalty range in Petitioner's case was from three (3) to twenty (20) years imprisonment. See ARK. CODE ANN. § 5-4-601(a)(2)(D). Petitioner was sentenced to fifteen (15) years, well within the authorized sentence range.
While Petitioner was charged as a habitual criminal, the trial court instructed the jury regarding the correct habitual criminal punishment, and the jury sentenced him as a habitual criminal, the judgment and commitment order in his state case fails to reflect Petitioner was actually sentenced as a habitual offender. ECF No. 9-1, p. 26-28. The Respondent concedes this failure may raise a cognizable claim for a state court habeas proceeding. See Response, ECF No. 9, fn 2. However, in order to raise a cognizable constitutional claim in a federal habeas proceeding, a sentence must be "outside the statutory limits or unauthorized by law." Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000). Here, Petitioner's sentences were within the bounds of Arkansas State Law, and a clerical error on the judgment and commitment order does not raise a federal constitutional question.
Petitioner's conviction, as discussed above, was not timely filed and should be dismissed. Further, two of the three claims made in the instant petition are procedurally defaulted. Finally, the third claim fails to state a constitutional deprivation.
Accordingly, based on the foregoing, it is recommended that the instant Petition be denied as untimely and dismissed with prejudice.
