Garrett v. Payne
| Docket Number | 4:20-cv-01252 LPR/PSH |
| Decision Date | 25 May 2023 |
| Parties | HARL GARRETT PETITIONER v. DEXTER PAYNE, Director, Arkansas Division of Correction “ADC” RESPONDENT |
| Court | U.S. District Court — Eastern District of Arkansas |
The following Recommended Disposition has been sent to United States District Judge Lee P. Rudofsky. You may file written objections to all or part of it. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.
Harl Garrett (“Garrett”), who is in the custody of the ADC, filed his pro se application for writ of habeas corpus pursuant to 28 U.S.C. §2254 on October 19, 2020. In it, Garrett challenges his 2019 conviction in Garland County Circuit Court for sexual assault in the second degree. The conviction followed a jury trial where Garrett was represented by retained counsel Ben Hooten (“Hooten”). Garrett was sentenced to twenty years' imprisonment.
In his original petition, Garrett advanced three claims for relief in his petition: (1) Hooten broke their contractual agreement by failing to represent Garrett on direct appeal; (2) Prosecutorial misconduct (allowing the victim to testify) and (3) Prosecutorial misconduct (failure to fully investigate the case). Garrett concedes that his petition was filed more than one year after his conviction became final - he explains that his appeal was denied in April 2020, and he later filed a Rule 37 petition (denied in September 2020) in an attempt to exhaust his state court remedies before the one year limitation period expired. Doc. No. 2, page 13.
Respondent Dexter Payne (“Payne”) argued that Garrett's first claim was procedurally defaulted due to his failure to raise his counsel's performance in a timely Rule 37 petition, and that claims two and three were procedurally defaulted due to Garrett's failure to raise the claims on direct appeal. In the alternative, Payne argued claims two and three were without merit. Doc. No. 11.
Walter Craig Lambert, appointed to assist Garrett, filed an amended petition for writ of habeas corpus, alleging that Garrett was denied his right to a direct appeal and his right to counsel on direct appeal. Doc. No. 22
In response, Payne now contends that Garrett's claims are barred by the statute of limitations.[1] Doc. No. 23.
The following dates are relevant in calculating whether Garrett filed his federal habeas petition in a timely fashion and, if not, whether the statute of limitations was tolled.
At this time, the trial court advised Garrett of his appellate rights, including the 30 day deadline to file a notice of appeal.
Payne contends that the statute of limitations bars consideration of the claims advanced in the amended petition. The parties have fully briefed this argument.
28 U.S.C. § 2244(d) imposes a one year period of limitation on petitions for writ of habeas corpus:
The Court is required to answer three questions in determining if Garrett timely sought federal habeas corpus relief: (1) When did the limitations period begin?; (2) In the year after the onset of the limitations period, was the period paused due to statutory tolling?; and (3) In the year after the onset of the limitations period, was the period paused due to equitable tolling? The Court concludes the limitations period began on October 8, 2020, and expired one year later without any time excluded due to statutory or equitable tolling. As a result, Garrett's October 19, 2021, petition for federal habeas corpus relief was untimely, and the Court recommends dismissal on that basis.
The statute provides that the limitations period starts from the latest of four dates. 28 U.S.C. § 2244(d)(1)(A)-(D). In this instance, the parties agree that 2244(d)(1)(D) is the governing provision - “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” The factual predicate constitutes the “vital facts underlying” the claims. Jimerson v. Payne, 957 F.3d 916, 924 (8th Cir. 2020) (quoting McAleese v. Brennan, 483 F.3d 206, 214 (3rd Cir. 2007).
Garrett's claims, that he was denied counsel on direct appeal and that he was denied a direct appeal, did not exist and therefore could not have been discovered by him in the weeks following his conviction. The time for direct appeal had not elapsed. The September 11, 2019 order granting Hooten's amended motion to withdraw as counsel was not provided to Garrett. As a result, Garrett was not aware that he was “on his own” for purposes of a direct appeal until on or about October 8, 2019, after the appeal deadline had passed, when he received a letter from Hooten along with a Notice of Appeal for his use. While Garrett was given notice of his appeal rights by the trial judge at sentencing and by the sentencing order,[2] he was not made aware that those rights were not being protected by his attorney until after the time to appeal had expired. All he knew is that his attorney had filed a motion to withdraw as counsel. The record is devoid of evidence concerning whether Hooten made efforts to notify...
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