Barrett v. Payne

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

JOSHUA M. BARRETT PETITIONER

ADC #170022

V. Case No. 4:23-CV-00983-JM-BBM

DEXTER PAYNE,

Director, ADC RESPONDENT

RECOMMENDED DISPOSITION

The following Recommended Disposition (“Recommendation”) has been sent to

United States District Judge James M. Moody, Jr. You may file written objections to all or

part of this Recommendation. 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 the date of this Recommendation. If you do not file

objections, Judge Moody may adopt this Recommendation without independently

reviewing all the evidence in the record. By not objecting, you may waive the right to

appeal questions of fact.

I. INTRODUCTION

On October 16, 2023, the Court received Petitioner Joshua M. Barrett’s (“Barrett”)

pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Barrett

is an inmate in the Cummins Unit of the Arkansas Division of Correction (“ADC”). On

November 20, 2023, Barrett filed an Amended Petition to correct a typographical error.1

1 The Amended Petition is not signed, so the Court reads the original Petition and the Amended

Petition together. The Court will cite to the Amended Petition for purposes of this Recommendation.

(Doc. 9). Barrett raises several issues in his Amended Petition, specifically: (1) that his

counsel was ineffective for failing to prepare for trial and failing to challenge his unlawful

arrest, (Doc. 11 at 4–6); (2) that the State failed to provide to his counsel the results of his

second polygraph examination before trial, id. at 7; and (3) that his trial counsel was

ineffective for failing present expert testimony to explain the results of his second

polygraph examination and to rebut the State’s expert, id. at 6–7.

The Respondent filed a Response on November 30, 2023, alleging that Barrett’s

petition is untimely, and that, should the Court find it timely, the arguments are

procedurally defaulted. (Doc. 12). Barrett replied, arguing (1) that the statute of limitation

did not begin to run until September 14, 2023; or (2) in the alternative, that he is entitled

to equitable tolling of the statute of limitation. (Doc. 14).

For the reasons discussed below, the Court recommends that Barrett’s Petition and

Amended Petition be dismissed as untimely.

II. BACKGROUND

On April 20, 2018, Barrett was found guilty of six counts of rape in the Circuit Court

of Pike County, Arkansas, and was sentenced to 150 years in the ADC. (Doc. 12-1). Barrett

filed a direct appeal of his conviction and sentence, which was denied by the Arkansas

Court of Appeals on March 13, 2019; the mandate was entered on April 2, 2019. (Docs.

12-4, 12-5). Barrett then timely submitted a petition for post-conviction relief pursuant to

Arkansas Rule of Civil Procedure 37.1 on May 29, 2019. (Doc. 12-6). His petition was

denied, and that denial was affirmed by the Arkansas Court of Appeals on January 20,

2021. (Doc. 12-10). The Arkansas Supreme Court denied Barrett’s petition for review on

March 18, 2021, and the Arkansas Court of Appeals issued the mandate on the same day.

(Docs. 12-13, 12-14). Barrett filed a Petition for Writ of Habeas Corpus in the above-

captioned matter on October 11, 2023.2 (Doc. 1).

III. DISCUSSION

A. Statute of Limitation

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes

a one-year limitation period for a state prisoner to file a federal habeas corpus petition. 28

U.S.C. § 2244(d)(1). The statute of limitation period runs from the latest of:

(A) the date on which the judgment became final by the conclusion of a

direct review or the expiration of the time for seeking such a 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 of due

diligence.

Id. at (d)(1)(A)–(D).

Barrett’s direct appeal concluded on April 2, 2019. (Doc. 12-5). Barrett properly

filed a petition for post-conviction relief on May 29, 2019. (Doc. 12-6); see 28 U.S.C. §

2 Pursuant to Rule 3(d) of the Rules Governing Section 2254 cases, the Court is taking the date

listed in the declaration of compliance as the filed date.

2244(d)(2). On March 18, 2021, the Arkansas Supreme Court issued its order denying

Barrett’s petition for review, and the Arkansas Court of Appeals issued a mandate on the

same day. (Docs. 12-13, 12-14). Therefore, Barrett had one year from March 18, 2021—

until March 18, 2022—to file his habeas petition under § 2244(d)(1)(A). As previously

stated, Barrett did not petition for habeas relief until October 11, 2023, making his Petition

untimely. (Doc. 1).

In fact, Barrett acknowledges, “[t]here is no dispute that Petitioner’s claims . . .

‘could’ be barred by the statute of limitations,” citing 28 U.S.C. § 2244(d)(1)(A). (Doc. 14-

1 at 4). Barrett argues, however, that the statute of limitation did not being to run until

September 14, 2023, when he received a copy the affidavit in support of his arrest and

discovered the constitutional violation, or, in the alternative, he is entitled to equitable

tolling. Id. at 4–5.

B. Arrest Warrant

First, Barrett argues that the statute of limitation did not begin to run until September

14, 2023, when he received the affidavit in support of his arrest warrant and discovered the

constitutional violation (lack of probable cause). (Doc. 14 at 3–4). Barrett mistakenly relies

on § 2244(d)(1)(D) in support of this argument. Section 2244(d)(1)(D) provides that the

statute of limitation shall run from “the date on which the factual predicate of the claim or

claims presented could have been discovered through the exercise of due diligence.”

(emphasis added).

Barrett avers that his mother was able to obtain the requested affidavit from the state

prosecutor through a Freedom of Information Act (“FOIA”) request. (Doc. 14 at 3–4).

Although Barrett argues that this path was unavailable to him under State law because he

was an inmate, he doesn’t explain why he was unable to ask his mother to make the request

earlier or why he didn’t seek to obtain the affidavit through trial counsel and/or appellate

counsel. Id.; (Doc. 11 at 8) (“the Constitutional violations complained of herein did not

come to light until Petitioner’s Mother filed [a] Freedom of Information Act [](FOIA)

[r]equest[].”).

Moreover, the Court takes judicial notice that the affidavit is openly available online

through Arkansas Court Connect under Barrett’s criminal case number 55CR-17-48 and

has been available since May 11, 2017. Affidavit for Warrant, State v. Joshua Barrett, Pike

County Circuit Court Case No. 55CR-17-48 (filed on May 11, 2017).3 Barrett provided a

copy of the affidavit as an attachment to both his original Petition, (Doc. 1 at 10), and his

Amended Petition, (Doc. 11 at 10). And, Barrett acknowledges that the arrest warrant at

issue was “discoverable” prior to his April 2018 jury trial when the prosecuting attorney

answered his attorney’s discovery request. (Doc. 14-1 at 5). Therefore, had Barrett been

diligent, the affidavit in question could have been discovered by him, not only within the

statute of limitation, but also prior to his trial.

In sum, because Barrett did not exercise due diligence, § 2244(d)(1)(D) does not

apply, and the statute of limitation began to run on March 18, 2021, when the Arkansas

Supreme Court denied his petition for review.

3 Arkansas state court records can be found using the Arkansas Judiciary’s Court Connect website:

https://caseinfo.arcourts.gov/opad (last accessed Oct. 9, 2024).

C. Equitable Tolling

In the alternative, Barrett argues that he is entitled to equitable tolling of the one-

year statute of limitation for the following reasons: (1) he did not have access to the law

library for several months, (Doc. 14 at 6); (2) he could not bring a FOIA request previously,

id. at 6–7; (3) he was unable to reach his trial counsel to discuss the appeal, id. at 7; and

(4) the COVID pandemic created an extraordinary circumstance that deserves equitable

tolling, id. at 8.

The statute of limitation is subject to equitable tolling. Holland v. Florida, 560 U.S.

631, 645 (2010). In Holland, however, the Court held that equitable tolling only applies in

“appropriate cases.” Id. To qualify as an “appropriate case” for equitable tolling, Barrett

bears the burden of proving: (1) that he pursued his rights diligently and (2) “that some

extraordinary circumstance beyond his control stood in his way” and prevented him from

timely filing his petition. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Earl v.

Fabian, 556 F.3d 717, 722 (8th Cir. 2009) (“We will decline to apply the doctrine of

equitable tolling if a habeas petitioner has not diligently pursued his rights.”). The Eighth

Circuit has held that, while the one-year statute of limitation may be equitably tolled in

extraordinary circumstances, this is an “exceedingly narrow window of relief” that is

infrequently given. Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001) (“any invocation of

equity to relieve the strict application of a statute of limitations must be guarded and

infrequent, lest circumstances of individualized hardship supplant the rules of clearly

drafted statutes”) (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)).

As a preliminary matter, according to the Eighth Circuit, lack of legal knowledge—

even when the plaintiff is pro se—does not qualify as an “extraordinary circumstances.”

Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (“Even in the case of an

unrepresented prisoner alleging a lack of legal knowledge or legal resources, equitable

tolling has not been warranted.”); Preston v. State, 221 F.3d 1343, 2000 WL 995013, *1

(8th Cir. Jul. 20, 2000) (unpublished) (“[Petitioner’s] unfamiliarity with federal law is not

a ground for equitable tolling”).

The Court will address each of Barrett’s arguments, in turn.

1. Access to Law Library

Barrett’s argument that his inability to access the law library from April 6, 2020,

through October 11, 2022, (Doc. 14-1 at 6), qualifies him for equitable tolling is unavailing.

Barrett cites Bounds v. Smith in support of his argument that he had a right to access a law

library. 430 U.S. 817 (1977). Yet, as the United States Supreme Court later held, Bounds

“did not create an abstract, freestanding right to a law library.” Lewis v. Casey, 518 U.S.

343, 351 (1996). Rather, inmates must be afforded “meaningful access to the courts.”

Bounds, 430 U.S. at 824. Providing a law library is merely one way to grant meaningful

access to the courts. Furthermore, equitable tolling is not justified by a petitioner’s pro se

status, lack of legal resources, or any confusion about the federal limitations period or state

post-conviction law. See, e.g., Lawrence v. Florida, 549 U.S. 327, 336–37 (2007) (holding

no equitable tolling due to confusion about the law, court-appointed counsel’s

miscalculation, or petitioner’s alleged mental incapacity); Earl v. Fabian, 556 F.3d 717,

724–725 (8th Cir. 2009) (holding no equitable tolling due to delayed receipt of case file,

pro se status, lack of access to legal materials, and limited time in library); Shoemate v.

Norris, 390 F.3d 595, 597–98 (8th Cir. 2004) (holding no equitable tolling due to

petitioner’s lack of legal knowledge or legal resources); Baker v. Norris, 321 F.3d 769,

771–72 (8th Cir. 2003) (holding no equitable tolling due to petitioner’s limited law library

access).

Even liberally construing Barrett’s reply, he only argues he did not have access to

the library because it was being used to quarantine sick inmates. (Doc. 14 at 6). Barrett

does not assert that he was unable to receive materials from the library or was otherwise

denied access to the contents of the library, nor does Barrett state how he was prejudiced

by an inability to access the library.4 In Muhammad v. United States, the Eighth Circuit

held that a Petitioner’s access to “paper and writing implements” and the ability to contact

the court and receive mail from the court was sufficient to provide meaningful access to

the courts. 735 F.3d 812, 815 (8th Cir. 2013). The Court further held that, “we have

recognized that equitable tolling was not proper when an unrepresented prisoner claimed

lack of legal resources.” Id.

Consequently, Barrett’s argument regarding his lack of access to the library during

the Covid-19 pandemic fails to justify the “exceedingly narrow” opportunity of equitable

tolling.

4 The Arkansas Department of Correction states that inmates who are administratively sequestered

have access to the materials “via library cart.” See, Inmate Programs, ARKANSAS DEPARTMENT OF

CORRECTIONS, https://doc.arkansas.gov/correction/inmates/inmate-programs-and-services/inmate-

programs-page-3/ (last visited Oct. 8, 2024).

2. Access to the FOIA Process

Barrett further argues that his lack of access to the FOIA process created an

extraordinary circumstance, justifying equitable tolling of the statute of limitation. As

discussed in Section III(B), Barrett’s ability, or lack thereof, to access information through

a FOIA request is not an extraordinary circumstance, as the evidence he sought was readily

available to the public online and to his counsel. Thus, Barrett’s inability to request the

affidavit in support of his arrest through a FOIA request because of his status an inmate

does not entitle him to equitable tolling of the statute of limitation.

3. Appellate Counsel’s Failure to Respond

Barrett next alleges that his appellate counsel’s failure to respond to his and his

family’s inquiries regarding whether he would continue to represent Barrett in pursuing

post-conviction relief created a situation that requires equitable tolling. (Doc. 14-1 at 7–

10). Notably, there is no constitutional right to counsel in non-capital habeas proceedings.

Blair v. Armontrout, 916 F.2d 1310, 1332 (8th Cir.1990); Johnson v. Avery, 393 U.S. 483,

488 (1969); McCleskey v. Zant, 499 U.S. 467, 495 (1991) (holding no constitutional right

to counsel in federal habeas); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“right to

appointed counsel extends to the first appeal of right, and no further”); Hilton v. Braunskill,

481 U.S. 770, 776 (1987) (“habeas corpus proceedings are civil in nature”); Boyd v.

Groose, 4 F.3d 669, 671 (8th Cir.1993). Thus, because Barrett was not entitled to counsel

for this habeas action, his failed attempts to retain private counsel to represent him in

obtaining post-conviction relief do not serve to toll the applicable statute of limitations. See

Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001) (“[A]n unsuccessful search for counsel

was not an extraordinary circumstance warranting equitable tolling.”).

Moreover, Barrett admits that neither he nor his family paid his appellate counsel to

represent him in obtaining post-conviction relief, and Barrett makes no argument that there

was an agreement or understanding that appellate counsel would continue to represent him

in a federal habeas action. (Doc. 14-1 at 7). Specifically, Barrett states that he and his family

tried to contact appellate counsel from March to November 2021, but their calls, letters,

and emails went unanswered “due to sickness in his law office.” Id. Once Barrett’s family

was able to reach his appellate counsel, they were informed that he would only continue to

represent Barrett if they were “willing to pay.” Id. Barrett acknowledged that his family

was unable to continue to pay appellate counsel’s “exorbitant legal fees.” Id. In sum,

Barrett’s unsuccessful attempts to retain counsel do not present an extraordinary

circumstance warranting equitable tolling of the statute of limitations.

4. The COVID Pandemic

Lastly, Barrett relies on the extraordinary nature of the COVID pandemic as

justification for equitable tolling. Although Barrett states that he became infected with

COVID around November 2021 and was in quarantine, he does not allege that he was too

ill to work on his habeas petition; rather, he notes that, during COVID lockdowns, he did

not have access to the law library.

As explained previously, Barrett’s lack of access to the law library does not justify

equitable tolling, even in light of the COVID-19 pandemic. See Simmons v. United States,

No. 4:21-cv-729-AGF, 2021 WL 4191616 (E.D. Mo. Sept. 15, 2021) (finding no equitable

tolling where COVID-19 restrictions made it difficult for movant to access law library);

U.S. v. Haro, No. 8:18-CR-66, 2020 WL 5653520, at *4 (D. Neb. Sept. 23, 2020) (holding

COVID-19 lockdown, which limited a petitioner’s access to the law library and ability to

make copies, was insufficient to justify equitable tolling.); Mims v. United States, 2021 WL

409954, at *3 (E.D. Mo. Feb. 5, 2021) (holding a claim of inability to access a law library

due to a COVID-19 lockdown was insufficient to warrant application of equitable tolling

where the movant failed to establish he was pursuing his rights diligently beforehand.);

Howard v. United States, 2021 WL 409841, at *4 (E.D. Mo. Feb. 5, 2021) (collecting cases

holding that a lack of law-library access generally does not warrant equitable relief); see

also United States v. Thomas, 2020 WL 7229705, at *2 (E.D. La. Dec. 8, 2020) (rejecting

a claim of entitlement to equitable tolling premised upon pandemic-related lack of law

library access where the movant failed to show he diligently pursued his rights before the

lockdown); United States v. Barnes, 2020 WL 4550389, at *2 (N.D. Okla. Aug. 6, 2020)

(assuming a COVID-19-related lockdown “delayed defendant’s ability to file his motion,”

but concluding equitable tolling was unwarranted because the defendant did not

demonstrate he had diligently pursued his claims).

Barrett further argues that, because the Arkansas Supreme Court “softened” its

application of the Arkansas Rules of Appellate Procedure in light of the COVID pandemic,

citing Hawkins v. State,5 this Court should “soften” the one-year statute of limitations in

5 The Court takes notice of court records found using the Arkansas Judiciary’s Court Connect

website: https://caseinfo.arcourts.gov/opad (last accessed Oct. 9, 2024).

this case. (Doc. 14-1 at 8). The circumstances presented in Hawkins v. State, however, are

distinguishable and do not serve to support Barrett’s request for equitable tolling. Pro Se

Mot For Belated Appeal, Hawkins v. State, CR-23-531 (Ark. Aug. 8, 2023). First,

Hawkins’s case was a criminal appeal and not a civil habeas action. Moreover, the

Arkansas Supreme Court did not provide a reason for allowing Hawkins to file his petition

late; it merely issued an order stating that he could. Formal Order, Hawkins v. State, CR-

23-531, (Ark. Aug. 30, 2023). Barrett presents no reason for this Court to treat these two

disparate cases the same, and the Covid-19 pandemic does not justify equitable tolling of

the statute of limitation in this case.

IV. CERTIFICATE OF APPEALABILITY

A § 2254 habeas corpus petitioner cannot appeal a denial of his petition unless he is

granted a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); FED. R. APP. P.

22(b)(1). A COA cannot be granted unless the petitioner “has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel,

529 U.S. 473, 484 (2000) (holding a certificate of appealability should issue when a district

court decides a case on procedural grounds only if “jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.”). The Court finds it unlikely

that any other court, including the Eighth Circuit Court of Appeals, would decide Barrett’s

claims any differently than they have been decided here. Therefore, the Court recommends

that Barrett not be granted a COA in this matter.

V. CONCLUSION

Because Barrett did not file his habeas petition within one year of the date his State

judgment became final—by March 18, 2022, and Barrett presents no extraordinary

circumstances warranting equitable tolling of the statute of limitation, his petition should

be dismissed with prejudice, and the relief requested should be denied.® 28 U.S.C.

§ 2244(d)(1)(A).

IT IS THEREFORE RECOMMENDED THAT:

1. Barrett’s Petition for Writ of Habeas Corpus, (Doc. 1), and Amended Petition

for Writ of Habeas Corpus, (Doc. 11), be DISMISSED with prejudice.

2. A Certificate of Appealability be DENIED. See 28 U.S.C. § 2253(c)(2).

3. Judgment be entered accordingly.

DATED this 11th day of October, 2024.

Bamein Move.

UNITED STATES MAGISTRATE JUDGE

© Because the Court recommends that the petition be dismissed as untimely, the Court did not

discuss the issues of procedural default and waiver.

13