Filed: Feb. 22, 2019
Latest Update: Feb. 22, 2019
Summary: ORDER BRIAN S. MILLER , District Judge . After de novo review of the record, including Respondent Wendy Kelley's objections [Doc. No. 31], United States Magistrate Judge J. Thomas Ray's recommendations [Doc. No. 24] are adopted, and Respondent's motion to dismiss is denied. Respondent argues in her objections [Doc. No. 31] that Petitioner Jimmy Dewayne May is not entitled to the 30 days of tolling between the time that his Rule 37 petition for post-conviction relief was denied and the d
Summary: ORDER BRIAN S. MILLER , District Judge . After de novo review of the record, including Respondent Wendy Kelley's objections [Doc. No. 31], United States Magistrate Judge J. Thomas Ray's recommendations [Doc. No. 24] are adopted, and Respondent's motion to dismiss is denied. Respondent argues in her objections [Doc. No. 31] that Petitioner Jimmy Dewayne May is not entitled to the 30 days of tolling between the time that his Rule 37 petition for post-conviction relief was denied and the de..
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ORDER
BRIAN S. MILLER, District Judge.
After de novo review of the record, including Respondent Wendy Kelley's objections [Doc. No. 31], United States Magistrate Judge J. Thomas Ray's recommendations [Doc. No. 24] are adopted, and Respondent's motion to dismiss is denied.
Respondent argues in her objections [Doc. No. 31] that Petitioner Jimmy Dewayne May is not entitled to the 30 days of tolling between the time that his Rule 37 petition for post-conviction relief was denied and the deadline to appeal because May did not appeal. Although it appears the Eighth Circuit's more recent decision in Streu v. Dormire, 557 F.3d 960 (8th Cir. 2009), contradicts the earlier United States Supreme Court's decision in Evans v. Chavis, 546 U.S. 189 (2006), it is assumed that the Eighth Circuit considered Evans in deciding Streu. Therefore, the AEDPA limitations period was tolled between the denial of his Rule 37 petition and the deadline to file an appeal. See Smith v. Hobbs, No. 5:11-CV-00091-KGB, 2012 WL 3595989 (E.D. Ark. Aug. 20, 2012) (discussing the uncertainty as a result of the discrepancy between Evans and Streu, and deciding, in an apparent abundance of caution, to follow Streu and proceed to the merits). May's habeas petition was timely.
Respondent is directed to file a response to May's habeas petition within thirty (30) days of this order.
May's motion to amend his habeas petition [Doc. No. 28], to include his purported notice of appeal and the letter returning his notice, is granted. It is noted, however, that because the notice of appeal was never filed, but rather, as May admits, was returned to him, it does not affect the tolling calculation against the AEDPA limitations period. See 28 U.S.C. § 2244(d)(2) (tolling the 1-year limitations period for the "time during which a properly filed application for State post-conviction or other collateral review . . . is pending.").
May's motion to appoint counsel [Doc. No. 27] is denied without prejudice. There is no constitutional right to legal representation in civil cases, although a court may, in its discretion, appoint counsel. See Phillips v. Jasper County Jail, 437 F.3d 791, 794 (8th Cir. 2006). Contrary to May's assertions, the issues in this case are neither factually nor legally complex, and he appears to be able to adequately present his claims. Id.
IT IS SO ORDERED.
