Lewis v. Payne

PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS

JOE J. VOLPE, United States Magistrate Judge.

The following recommended disposition has been sent to United States District Judge Brian S. Miller. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.

2. Why the evidence proffered at the hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.

3. The details of any testimony desired to be introduced at the new hearing in the form

of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing.

From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and “Statement of Necessity” to:

Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR 72201-3325

DISPOSITION

I. BACKGROUND

Petitioner Luther Lewis, an inmate at the Tucker Unit of the Arkansas Division of Correction, brings this 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus. (Doc. No. 1). On March 31, 2018, law-enforcement officers responded to a call from Mr. Lewis's mother who reported a disturbance involving Mr. Lewis at her home. (Id. at 42). Officers found Mr. Lewis highly intoxicated in the street and instructed him to go inside his home because he was causing a disturbance in the neighborhood. (Id. at 42, 48-50). After several attempts to get Mr. Lewis to calmly leave the street, Mr. Lewis finally went inside. (Id.). Minutes later, Officers returned to the home after hearing more yelling. (Id. at 49-50). Officers report that Mr. Lewis was cursing and yelling on his front porch and refusing to comply with Officers repeated requests to stay indoors. (Id.). Officers attempted to take Mr. Lewis into custody for disorderly conduct and public intoxication, but he resisted and retreated inside the home. (Id. 48-50). Mr. Lewis claimed when the officers returned, he was “forcibly removed” from his couch during the warrantless entry. (Id. at 22). Mr. Lewis was then removed from the residence and put inside the officer's vehicle. (Id. at 42, 48-50). Mr. Lewis physically resisted, kicked one officer in the groin, and continued to make verbal threats to the officers once inside the patrol car and throughout

the intake process. (Id.). The police reports included the following threats made to officers by Mr. Lewis:

“Wait till I get out, I'm gonna get you, and if I can't get you I'll get your families, ” “when I get out, I'm gonna kill all y'all and your families, ” “I'm going to kill your bitch ass for this, ” “I'm going to f*** your daughter in her nasty a** pussy, ” and “as soon as I get out of here I'm gonna find you and shoot y'alls asses, bullets are gonna fly.”

(Id. at 43, 48-50).

On June 28, 2019, Mr. Lewis pleaded guilty to three counts of terroristic threatening in the Johnson County Circuit Court. (Id. at 37-41, 44). Pursuant to the plea agreement, all other charges were nolle prossed and Mr. Lewis was sentenced to 120 months to the Arkansas Division of Correction. (Id. at 44). Mr. Lewis did not file a direct appeal, nor did he pursue state post-conviction relief through a Rule 37 petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (Id. at 2; Doc. No. 10 at 2). On February 10, 2020, Mr. Lewis filed a petition for writ of habeas corpus, asserting:

his conviction should be declared void because his is innocent of the charges; he was arrested without probable cause or a valid warrant; his plea was not knowingly and voluntarily entered; he was coerced by threat to enter his guilty plea; and there was insufficient evidence to support the charges.

(Doc. No. 1 at 66; Doc. No. 10-1 at 4).

On March 10, 2020, the Jefferson County Circuit Court denied the petition without a hearing, finding “none of petitioner's claims are cognizable in a habeas matter.” (Doc. No. 1 at 66). The circuit court explained “[t]he petitioner should have addressed these allegation[s] on the trial court level, on direct appeal, or in a timely post-conviction proceeding.” (Id.).

Mr. Lewis appealed the denial to the Arkansas Supreme Court, reiterating his claims “(1) his behavior that led to the charges filed against him did not constitute terroristic threatening, (2) his arrest was illegal, and (3) his plea of guilty was rendered involuntary by flaws in the guilty-

plea proceedings.” Lewis v. Payne, 2020 Ark. 345, at 1. On October 29, 2020, the Arkansas Supreme Court affirmed. Id.

Through his Petition for Writ of Habeas Corpus, Mr. Lewis now claims he is actually innocent and that his counsel was constitutionally ineffective. Specifically, he says (1) he is actually and legally innocent of the offense of terroristic threatening; (2) that his plea was coerced by threats of “extensive punishment/incarceration” if he went to trial; and (3) that his attorney abandoned him at a critical stage in the proceedings. (Doc. No. 1 at 23-33). Respondent counters that Mr. Lewis's petition is time barred, the claims have procedurally defaulted, and they are not federally cognizable. (Doc. No. 10 at 4-12). After careful consideration of Mr. Lewis's Petition (Doc. No. 1) and the Response (Doc. No. 10), for the following reasons I find the Petition should be dismissed as time barred.

II. ANALYSIS

A. Time Bar

1. Statute of Limitation and Tolling

Mr. Lewis's Petition is untimely based upon the one-year period of limitation imposed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Title 28 U.S.C. § 2244(d)(1) and (2) impose a one-year period of limitation on habeas corpus petitions:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) 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; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise