436 F.3d 1026 (8th Cir. 2006), 05-1294, Walker v. Norris

Docket Nº:05-1294.
Citation:436 F.3d 1026
Party Name:Mark Douglas WALKER, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
Case Date:January 31, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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436 F.3d 1026 (8th Cir. 2006)

Mark Douglas WALKER, Appellant,


Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

No. 05-1294.

United States Court of Appeals, Eighth Circuit.

January 31, 2006

Submitted: October 11, 2005.

Appeal from the United States District Court for the Eastern District of Arkansas.

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Mark Douglas Walker, Calico Rock, AR, pro se.

Craig Lambert, argued, Little Rock, AR, for appellant.

Assistant Atty. Gen., Lauren Elizabeth Heil, argued, Little Rock, AR, for appellee.

Before RILEY, HANSEN, and COLLOTON, Circuit Judges.

RILEY, Circuit Judge.

Mark Walker (Walker) filed an application for federal habeas corpus relief in the United States District of Arkansas pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254. The district court1 dismissed the application as time barred under the AEDPA's one-year statute of limitations. This appeal followed. We affirm.


A jury convicted Walker of manslaughter, first degree battery, and leaving the scene of an accident. The Arkansas Circuit Court of Benton County sentenced

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Walker to 36 years' imprisonment. Walker's convictions were affirmed on direct appeal, and the Arkansas Supreme Court denied his petition for review on September 9, 1999.

Walker had sixty days from the date the Arkansas Supreme Court denied his petition for review to file a petition for post-conviction relief under Arkansas Rule of Criminal Procedure 37. Ark. R. Crim. P. 37.2(c). Rule 37 describes who may file a petition and how a petition should be presented: "A petitioner in custody under sentence of a circuit court claiming a right to be released, or to have a new trial, or to have the original sentence modified . . . may file a verified petition in the court which imposed the sentence, praying that the sentence be vacated or corrected." Ark. R. Crim. P. 37.1. Rule 37 also specifies requirements as to the content, format, and length of the petition, and warns, "[p]etitions which are not in compliance with this rule will not be filed without leave of the court." Ark. R. Crim. P. 37.1(e).

On November 8, 1999, a pro se petition bearing Walker's name was filed in Arkansas Circuit Court of Benton County.2 Walker's signature appeared on the "Petitioner, pro se" verification line; however, the notary verification lines were left blank. The signature of Walker's trial counsel, Chadd Mason (Mason), appeared on the "Respectfully submitted, ____, Petitioner, pro se" line. The petition asserted claims for ineffective assistance of counsel, erroneous jury instructions, prosecutorial misconduct, and improper admission of evidence. The petition also contained requests for in forma pauperis status and appointment of counsel. Appointed counsel filed an amended petition on June 23, 2000. The state moved to dismiss the petition arguing, inter alia, the circuit court lacked jurisdiction because Walker failed to have the original petition verified, and failed to file an amended petition within the sixty-day time limit pursuant to Rule 37.

The circuit court conducted an evidentiary hearing on the issue of verification, and questioned Walker about the preparation of his pro se petition. Walker testified, "I signed the back of the Rule 37 [petition] and also signed the part where it was supposed to be notarized," and sent the petition to Mason "to fill it all out and plus get it notarized." When asked about the notarization requirement, Walker said, "I told [Mason] that from what I found in the law library pertaining to stuff like this it said that in most cases [the petition] does need to be notarized and I told him what I found and he said, well, no, it didn't need to be notarized." Walker also testified he could have obtained a Rule 37 pro se petition at any time, and he knew there was a statute of limitations on filing a Rule 37 petition.

Mason testified he thought he still represented Walker when he agreed to file the Rule 37 petition. Mason recognized a conflict of interest existed since Walker asserted an ineffective assistance of counsel claim against Mason. Nonetheless, Mason said he felt he had a duty to help Walker complete the petition. Mason completed the petition based on Walker's written instructions. When asked about Walker's unverified signature, Mason said he had no legal basis to have Walker's signature notarized since Walker had not signed the petition in Mason's presence. Mason explained the filing deadline was Monday, November 8,1999, but he received the materials from Walker shortly before or on the day the petition was due, leaving no time to return the petition to Walker for notarization.

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On May 10, 2001, the circuit court dismissed Walker's petition with prejudice, concluding it lacked jurisdiction because Walker had not filed a verified petition within the Rule 37 deadline. The circuit court was dismayed at the behavior of Mason and Walker, and remarked that such conduct "underscores the reasoning behind the [Arkansas] Supreme Court's apparent strict enforcement of the [Rule 37] verification requirement." The circuit court entered its...

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