Coulter v. Kelley

Decision Date31 March 2015
Docket NumberCIVIL NO. 1:01-cv-01125
PartiesROGER LEWIS COULTER PETITIONER v. WENDY KELLEY, Director Arkansas Department of Corrections RESPONDENT
CourtU.S. District Court — Western District of Arkansas

Petitioner, Roger Lewis Coulter, sentenced to death for capital murder and confined at the Maximum Security Unit of the Arkansas Department of Correction ("ADC"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). In response, Respondent, Wendy Kelley, has asserted multiple procedural defenses and time bars to Petitioner's claims. The Court held an evidentiary hearing on these issues in April 2013 ("Habeas Hearing"). After thorough consideration of the arguments and evidence presented at the Habeas Hearing and the parties' pre-and post-hearing briefing, the Court issues this Memorandum Opinion.


In 1989, Petitioner was convicted, in the Circuit Court of Ashley County, Arkansas, of the rape and capital murder of five-year-old Natasha Phelps and was sentenced to death by lethal injection. On appeal from the post-conviction proceedings, the Arkansas Supreme Court summarized the facts surrounding the rape and murder as follows:

The record reflects that [Petitioner] was living with the child victim and her mother in Warren, Arkansas. On the morning of April 12, 1989, [Petitioner] left home with the child and was supposed to take her to the local Headstart center, which he did from time to time. According to the child's mother, [Petitioner] returned home that morning somewhat later than normal, wearing dirty clothes and claiming that he had experienced car trouble. After eating breakfast and bathing, [Petitioner] drove to his mother's house to borrow some money. [Petitioner] was later seen cashing a check from his mother at a local bank. [Petitioner] did not return the child home that afternoon. Her mother and grandmother eventually went to the Headstart center to pick up the child. There, they were informed that the child had not been dropped off that day.
The victim's family filed a missing-person report with the local police, and a search for the child was undertaken. Police officers found the child's body the following day, in a wooded area where witnesses had seen [Petitioner] in his car the day before. The child's partially clothed body was found stuffed inside a hollow tree, covered by some branches and leaves. Testimony from the state's chief medical examiner established that the child had been raped and ultimately died of smothering and strangulation. [Petitioner] was eventually arrested in California, some five weeks after the murder.

Coulter v. State, 343 Ark. 22, 26, 31 S.W.3d 826, 828 (Ark. 2000).

In 1991, the Arkansas Supreme Court ("ARSC") affirmed Petitioner's conviction, and the United States Supreme Court denied certiorari later that same year. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (Ark. 1991), cert. denied sub nom Coulter v. Arkansas, 502 U.S. 829 (1991). Petitioner then sought post-conviction relief in the circuit court of Ashley County. In October of 1999, the circuit court denied all relief, and in November of 2000, the ARSC affirmed. Coulter v. State, 343 Ark. at 35. On October 1, 2001, Petitioner filed his original Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. (Pet'r's Pet. for Writ of Habeas Corpus, October 1, 2001, ECF No. 3). On September 16, 2003, Petitioner filed a First Amended Petition. (Pet'r's Am. Pet. for Writ of Habeas Corpus, September 16, 2003, ECF No. 25). In this First Amended Petition, Petitioner asserted multiple claims including a claim that he is mentally retarded pursuant to Atkins v. Virginia, 536 U.S. 304 (2002) ("Atkins Claim"). By Order datedMay 24, 2004, the Court dismissed Petitioner's Atkins Claim, in order for Petitioner to return to state court and exhaust that claim. This Order also stayed Petitioner's remaining claims pending his return from state court.2 (Order, May 24, 2004, ECF No. 27). On January 3, 2007, Petitioner filed a Motion to Lift Stay and Second Amended Petition (Pet'r's Am. Pet. for Writ of Habeas Corpus by a Person in State Custody, January 3, 2007, ECF No. 44).

In his Second Amended Petition, Petitioner made thirteen claims for relief: (1) Petitioner's "death sentence must be vacated because the prosecutor's closing argument violated his constitutional rights under Caldwell v. Mississippi, 472 U.S. 320 (1985);" (2) "trial counsel rendered constitutionally ineffective assistance at the penalty phase;" (3) the sentence of death "is predicated upon a single invalid aggravating circumstance;" (4) "the trial court violated [Petitioner's] constitutional rights by removing potential jurors for cause based on their views of the death penalty even though the jurors could be substantially fair and impartial;" (5) "the sentencing provisions of Arkansas' capital murder statutes violate the constitution;" (6) Petitioner "is entitled to relief from his death sentence under the Eighth and Fourteenth Amendments because he suffers from mental retardation;" (7) "the trial court unconstitutionally denied [Petitioner] funds to retain an expert to assist in his defense at both the guilt and penalty phases of his trial;" (8) "trial counsel labored under an insurmountable conflict of interest that adversely affected his performance in violation of [Petitioner's] constitutional rights;" (9) Petitioner's "constitutional rights to a fair trial were violated by the trial judge's failure to discharge his duty to protect[Petitioner's] right to the effective assistance of counsel at the penalty phase;" (10) "trial counsel rendered constitutionally ineffective assistance at the guilt phase;" (11) "the judge unconstitutionally instructed the jury in the guilty phase that, if it did not convict [Petitioner] of capital murder, his crime might be punished with only a fine;" (12) "errors and omissions by appellate and state post-conviction counsel deprived [Petitioner] of his constitutional rights to effective assistance on appeal and on state collateral review;" and (13) "the Court should conduct a cumulative assessment of whether constitutional errors occurred and whether such errors were prejudicial." (Am. Pet., ECF No. 44).

Respondent initially filed a Response to the Second Amended Petition on May 1, 2007. (Resp. to Second Am. Pet. for Writ of Habeas Corpus, May 1, 2007, ECF No. 50). The parties then proceeded to litigate the issues raised in the Second Amended Complaint and original Response over the course of the next two years.3

On September 11, 2009, the Court issued an Order establishing a briefing schedule for the parties to specifically address all statute of limitations arguments and procedural defenses in this matter ("Briefing Order"). (Order, September 11, 2009, ECF No. 94). On October 26, 2009, inResponse to the Briefing Order, Respondent submitted a document titled "First Amended Response to Petitioner's Second Amended Petition for Writ of Habeas Corpus" ("Amended Response"). (ECF No. 98). In the Amended Response, Respondent not only clarified the procedural defenses and statute of limitations assertions made in the original Response, but also included additional arguments, including an assertion that Petitioner's original habeas Petition was untimely filed pursuant to the AEDPA.4 (Amended Response, ECF No. 98). On January 25, 2010, in response to the Amended Response, Petitioner filed a document titled "Reply to Respondent's Briefing Regarding the Statute of Limitations and Procedural Default." ("Petitioner's Reply"). (ECF No. 105).


As explained fully below, the Court finds that Petitioner's original Petition is time barred pursuant to the AEDPA, and this habeas matter should be dismissed with prejudice. The Court arrives at this conclusion by first addressing the initial matter of whether Respondent's limitations argument is properly before the Court. Once it is established that the limitations argument should be considered, the Court will analyze whether Petitioner filed his Petition outside of the AEDPA one-year statute of limitations. Next, the Court will address whether Petitioner is entitled to equitable tolling. Finally, the Court will address Petitioner's miscarriage of justice arguments against the time bar.5

I. Arguments Properly Before the Court

Respondent first argues that Petitioner's original Petition is time barred, therefore, the Court need not consider any claims made by Petitioner and the Second Amended Petition should be dismissed. Respondent asserted this argument for the first time in his Amended Response. (Resp't's First Am. Resp., 15-20, ECF No. 98). Before addressing the merits of this statute of limitations argument, the Court must first address Petitioner's assertion that this argument is not properly before the Court.

A. Waiver of Limitations Argument

Petitioner argues Respondent waived this particular statute-of-limitations argument by failing to assert it in his Response to the original Petition. Further, Petitioner argues Respondent conceded, in his initial Response to the Second Amended Petition, that the original Petition was timely filed. Respondent filed his Amended Response to the Second Amended Petition on October 26, 2009. In this Amended Response, Respondent explained that he interpreted the Court's September 11, 2009 Briefing Order to grant him leave to amend his Response or, in the alternative, he requested that the Court grant him leave to so amend.

In support of his waiver argument, Petitioner relies on Day v. McDonough, 547 U.S. 198 (2006). The issue in Day, however, is distinguishable from the issue presented here. In Day the Court considered whether a habeas court may, sua sponte, dismiss a prisoner's petition for writ of habeas corpus as untimely. Id. at 202. The Day Court explained that habeas courts are "per...

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