# Burton v. Payne

> District Court, E.D. Arkansas · July 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11103920

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** July 18, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11103920

## How later opinions describe it (automated extraction)

- stating that for purposes of § 2244(d)(1), a pro se prisoner’s habeas petition is filed on the date it is delivered to prison authorities for mailing
- holding that a petitioner’s misunderstanding of Arkansas rules, statutes, and the time limitations did not justify equitable tolling
- explaining that only a “firmly established and regularly followed state practice” can prevent review of a federal claim
- noting that a prisoner seeking state postconviction relief can avoid AEDPA’s time bar by filing a protective petition in federal court and asking the federal court to stay and abey the proceedings until state remedies are exhausted

## Opinion text

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

TIMOTHY RAY BURTON PETITIONER
ADC #154389

V. NO. 4:24-cv-741-DPM-ERE

DEXTER PAYNE Director,
Arkansas Division of Correction RESPONDENT

RECOMMENDED DISPOSITION

This Recommendation (“RD”) has been sent to United States District Judge
D.P. Marshall Jr. You may file objections if you disagree with the findings and
conclusions set out in the RD. Objections should be specific, include their factual or
legal basis, and be filed within fourteen days. If you do not object, you risk waiving
the right to appeal questions of fact, and Judge Marshall can adopt this RD without
independently reviewing the record.
I. Introduction
Timothy Ray Burton, an inmate at the Cummins Unit of the Arkansas Division
of Correction, filed a petition for habeas corpus (Doc. 1) and addendum (Doc. 4)
pursuant to 28 U.S.C. § 2254. For reasons that follow, the petition should be denied
and dismissed with prejudice as time barred or, alternatively, because each claim is
either procedurally defaulted or not subject to federal habeas review under 28 U.S.C.
§ 2254(d).
II. Procedural Background
On August 2, 2022, a Saline County, Arkansas jury convicted Mr. Burton of

fleeing and possession of firearms by certain persons. Burton v. State, 2023 Ark.
App. 271, 1 (2023). He was sentenced as a habitual offender to consecutive terms of
180 and 360 months in prison. Id.

Mr. Burton appealed, asserting insufficient evidence. Id. On May 10, 2023,
the Arkansas Court of Appeals affirmed Mr. Burton’s convictions but remanded with
instructions to correct the sentencing order to reflect his status as a habitual offender.
Id. at 7.

Mr. Burton did not file a petition for rehearing in the Arkansas Court of
Appeals; nor did he pursue a petition for review in the Arkansas Supreme Court.
On July 13, 2023, Mr. Burton filed a petition for post-conviction relief

pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure, asserting that his
trial attorney rendered ineffective assistance of counsel in several respects. Doc. 10-
6. On August 28, 2023, the trial court denied Mr. Burton’s Rule 37 petition. 10-8.
On April 26, 2024, Mr. Burton filed notice of appeal from the August 28, 2023

order denying his Rule 37 petition. Doc. 17-11. He wrote the phrase “Nunc Pro
Tunc” at the top of the appeal form and the following note at the bottom of the first
page: “The Appellant never received any Order [or] Notice of the denial until 4-17-

2024.” Id.
By letter dated July 22, 2024, the Arkansas Supreme Court, Office of the
Criminal Coordinator, advised Mr. Burton: “The Clerk of the Arkansas Court of

Appeals has declined to lodge the record on appeal because you did not file the notice
of appeal with the circuit clerk within thirty days of the date the order was entered
as required by the rules of procedure. The notice of appeal was due to be filed . . .
no later than September 27, 2023.”1

On August 26, 2024, Mr. Burton filed the § 2254 petition now before the
Court,2 asserting the following grounds for relief: (1) the State failed to prove his
identity as the perpetrator of the crimes for which he was convicted; (2) the State

withheld evidence of items seized from the Dodge Charger in violation of Brady v.
Maryland, 373 U.S. 83 (1963);3 (3) the State withheld crime scene evidence
including latent fingerprints and D.N.A. violation of Brady; (4) he is actually

1 See Arkansas v. Burton, No. 63CR-21-817 (Saline Cty. Cir. Ct), accessible
at https://caseinfo.arcourts.gov/cconnect/PROD/public.

2 The Clerk of Court received Mr. Burton’s petition for filing on August 30, 2024, and
entered it on the docket that day. However, giving Mr. Burton the benefit of the “prison mailbox
rule,” the petition is deemed filed on the date he placed it in the prison mail system: August 26,
2024. See Doc. 2 at 23-24 (declaring under penalty of perjury that the petition was placed in the
prison mailing system on 26 August 2024); Ford v. Bowersox, 178 F.3d 522, 523 (8th Cir. 1999)
(stating that for purposes of § 2244(d)(1), a pro se prisoner’s habeas petition is filed on the date it
is delivered to prison authorities for mailing); see also Rule 3(d) Rules Governing § 2254 Cases in
the United States District Courts.

3 In connection with Claims 3 and 4, which assert Brady violations, Mr. Burton alleges that
the prosecution also violated Arkansas procedural and discovery rules. However, federal habeas
corpus relief is not available for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
innocent; and (5) the State presented insufficient evidence that he possessed a
firearm. Doc. 2.

On December 12, 2024, Respondent filed a response, asserting only that the
petition is time-barred under 28 U.S.C. § 2244(d)(1). Doc. 10.
On January 29, 2025, Mr. Burton filed a reply, asserting that his petition

“should not be time barred due to [an] unforeseen act (lost mail).” Doc. 15 at 8.
On March 26, 2025, at my direction (Doc. 16), Respondent filed a
supplemental response that addresses all allegations in the petition and asserts
additional grounds for dismissal: (1) claims 1 through 4 are inexcusably procedurally

defaulted; and (2) state court adjudication of claim 5 is due deference under 28
U.S.C. § 2254(d).
III. Factual Background

In affirming Mr. Burton’s convictions for fleeing and possession of firearms
by certain persons, the Arkansas Court of Appeals summarized the trial evidence as
follows:
Sergeant Jeffery Plouch with the Arkansas State Police, who was the
supervisor for Saline County, testified that on the night of August 1,
2021, he was on Interstate 30 in Saline County when he initiated a
traffic stop on a white Dodge Charger. The Charger would not pass
Plouch even when he slowed down to approximately fifty miles an hour
in a seventy-mile-an-hour zone. Plouch pulled over and then returned
to the interstate to catch up to the Charger. The driver of the Charger
“hit the brakes,” so Plouch could not get behind him. Plouch perceived
that the Charger did not want the trooper behind him and ran the license
plate through ACIC and NCIC, which returned on a 2008 white
Charger. Because troopers drive Chargers, Plouch knew that the model
he was following was newer than a 2008 model. When Plouch turned
on his blue lights, the Charger stopped on the right shoulder, briefly put
the car in park, and then accelerated and did a U-turn. The Charger
proceeded to drive eastbound in the westbound lanes of the interstate.

Plouch notified other nearby units in the area. The Charger exited the
interstate and went the wrong way down a service road. Trooper Kade
Cash performed a PIT (precision intervention technique) maneuver at
Alcoa Road and Highway 5, which caused the Charger to spin out into
construction. This was done because the Charger had traveled in the
wrong direction and at speeds exceeding one hundred miles an hour in
forty-five-mile-an-hour zones, which endangered the public. Trooper
Trevor Stevenson arrived, and they attempted to box the Charger from
proceeding, and Plouch also bumped the Charger with his vehicle to
stop it. The Charger proceeded to travel on Highway 5 before turning
south on Alcoa Road. Plouch then performed a second PIT maneuver,
which caused the Charger to spin to the edge of the roadway. Corporal
Trent Behnke arrived on the scene. Trooper Cash then rammed the
passenger side of the vehicle to disable it. Plouch explained that PIT
maneuvers had been attempted, and it was time to stop the driver.
Troopers drew their guns and ordered the driver out of the vehicle.
Instead, the Charger accelerated in reverse and drove southbound on
Alcoa Road, made a quick turn into a car dealership, drove into a ditch,
and overturned.

Appellant attempted to flee on foot and was apprehended by Trooper
Stevenson and Corporal Behnke. Appellant initially resisted being
placed in handcuffs but eventually complied. The car was searched after
being pulled out of the ditch. Fourteen firearms were found in the trunk,
including a 7.0 mm large caliber rifle, three 12-gauge shotguns, two
multi-caliber rifles, a 20-gauge shotgun, a .308 rifle, a Colt .45 revolver,
a .38-caliber pistol, three 9 mm pistols, and a .22-caliber pistol. A check
of the Charger’s VIN revealed that it had been reported stolen two days
before in North Little Rock. The license plate, which had expired eight
months earlier and was registered to a couple from Murfreesboro, did
not match the Charger.

On cross-examination, Plouch stated that he had not made contact with
the female owner. He testified that once appellant was arrested, Plouch
had no further involvement, although he was aware that a woman
named Whitney Reynolds had claimed ownership of the weapons. In
addition to Sergeant Plouch, Trooper Cash, Trooper Stevenson, and
Corporal Behnke all testified to their involvement in pursuing the
Charger as described by Plouch. In addition to the firearms, women's
clothing was found in the trunk. The troopers’ dashcam videos were
admitted into evidence and played for the jury.

Burton v. State, 2023 Ark. App. 271, 2–4 (2023).
IV. Discussion

A. Mr. Burton’s Petition is Time Barred

1. The One-Year Statute of Limitation For Mr. Burton’s
Petition Began Running June 9, 2023

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
imposes a one-year statute of limitation for a state prisoner’s federal habeas petition
challenging a state conviction. 28 U.S.C. § 2244(d)(1). The one-year period begins
to run from the latest of four alternative dates, and the applicable date in this case is
“the date on which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
On May 10, 2023, the Arkansas Court of Appeals affirmed Mr. Burton’s
convictions. Because Mr. Burton did not seek review by the Arkansas Supreme
Court, his judgment of conviction became final when the time for seeking such
review expired under state filing deadlines. Gonzalez v. Thaler, 565 U.S. 134, 137
(2012).
Mr. Burton’s deadline for filing a petition for rehearing in the Arkansas Court
of Appeals expired Monday, May 29, 2023. See Ark. Sup. Ct. R. 2-3(a) (requiring

that a petition for rehearing be filed within eighteen calendar days from the date of
decision); see also Ark. R. App. P. Crim. 17 (providing that when a filing deadline
falls on a Saturday, Sunday, or legal holiday, it shall be extended to the next

business day). Mr. Burton’s deadline for filing a petition for review by the Arkansas
Supreme Court expired ten days later on June 8, 2023, see Ark. Sup. Ct. R. 2-4(a)
(effective July 1, 2019) (requiring a petition for review by the Arkansas Supreme
Court be filed within ten calendar days after the end of the Court of Appeals

rehearing period), and his judgment of conviction became final the next day, June 9,
2023, when he could no longer seek appellate review. See Johnson v. Hobbs, 678
F.3d at 610 & n.3 (8th Cir. 2022) (noting that state conviction became final the day

after last day for filing a petition for review, when the defendant “could no longer
seek review” from the Arkansas Supreme Court); King v. Hobbs, 666 F.3d 1132,
1135-36 & n.4 (8th Cir. 2012) (habeas statute of limitation began running the day
after the deadline for filing a petition for review with the Arkansas Supreme Court);

Fed. R. Civ. P. 6(a)(1)(A) (excluding from the time computation the day of the event
that triggers the time period).
Absent sufficient tolling or a showing of actual innocence, Mr. Burton had
until Monday, June 10, 2024, to file a federal habeas petition.4

2. Statutory Tolling Paused the AEDPA Limitation Period
From July 13 to September 27, 2023, Giving Mr. Burton
Until August 23, 2024 to File a § 2254 Petition

The AEDPA limitation period is tolled “[t]he time during which a properly
filed application for State post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending . . . .” 28 U.S.C. § 2244(d)(2). The one-
year limitation period in Mr. Burton’s case ran thirty-four days, from June 9, 2023
to July 13, 2023, when he filed a timely Rule 37 petition for postconviction relief,
which tolled the AEDPA’s one-year limitation period.
The trial court denied Mr. Burton’s Rule 37 petition on August 28, 2023.
Respondent asserts that because Mr. Burton did not appeal the denial of

postconviction relief, the one-year clock resumed on August 28, 2023. Doc. 10 at 6.
However, pursuant to Eighth Circuit precedent, which this Court is bound to follow,
Mr. Burton’s Rule 37 petition remained “pending” for AEDPA tolling purposes the
entire time during which he could have, but did not, appeal the trial court’s denial of

4 Because June 8, 2024 fell on a Saturday, Mr. Burton had until Monday, June 10, 2024 to
file his federal petition. Rule 6(a)(1)(C).
postconviction relief.5 In Arkansas, a notice of appeal must be filed within thirty
days from entry of an order denying a Rule 37 petition. Ark. R. App. P. Crim. 2(a)(4).

The one-year federal limitation period should be considered tolled seventy-six days,
from the initiation of the postconviction proceedings on July 13, 2023 until
September 27, 2023 when the time for appeal expired. At that point, Mr. Burton had

331 more days, until Friday, August 23, 2024, to file a federal habeas petition,
making his petition filed August 26, 2024 three days late.
3. Mr. Burton Is Not Entitled to Equitable Tolling
Mr. Burton argues that his petition should not be time barred “due to [an]

unforeseen act (lost mail).” Doc. 15 at 8. He states that he never received the trial
court’s order denying his Rule 37 petition, and the prosecuting attorney eventually
notified him by letter that his petition had been denied. Mr. Burton does not say

when he received the prosecutor’s letter, but the handwritten note on the bottom of

5 In Streu v. Dormire, 557 F.3d 960, 966 (8th Cir. 2009), the Eighth Circuit reaffirmed its
holding in Williams v. Bruton, 299 F.3d 981 (8th Cir. 2002), that an application for postconviction
relief remains “pending” for AEDPA tolling purposes during the time for appeal, even if the
petitioner does not appeal. Respondent points out that in Evans v. Chavis, 546 U.S. 189 (2006),
issued three years prior to Streu, the Supreme Court held that the AEDPA limitations period was
not tolled for a three-year interval between the denial of postconviction relief and the petitioner’s
filing a notice of appeal from that decision. However, Evans involved California’s unique
postconviction review scheme, which required that the petitioner: (1) file separate, original
petitions for postconviction relief at each state court level; and (2) file each petition within a
“reasonable” time after the lower court’s adverse decision. Evans did not involve the present
circumstances, where the petitioner did not appeal the denial of postconviction relief during a
definite, statutorily prescribed period. In any event, it is assumed that the Eighth Circuit considered
Evans in deciding Streu, and this Court is duty bound to follow precedential decisions of the Eighth
Circuit.
his postconviction appeal form states that on April 17, 2024, he learned that his
petition had been denied. Doc. 17-11.

The one-year limitation period for filing a § 2254 habeas petition may be
equitably tolled if a petitioner demonstrates that: (1) he has been “pursuing his rights
diligently,” but (2) “some extraordinary circumstance stood in his way and prevented

timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010). “The burden of
demonstrating grounds warranting equitable tolling rests with the petitioner.” Earl
v. Fabian, 556 F.3d 717, 722 (8th Cir. 2009) (citing Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)).

Assuming that lost mail qualifies as an extraordinary circumstance warranting
equitable tolling, Mr. Burton is not entitled to the equitable remedy because he did
not act with reasonable diligence in pursuing his rights. According to Mr. Burton,

on July 22, 2024, when the Arkansas Supreme Court declined to lodge his untimely
postconviction appeal, he had only two options: (1) file a § 2254 federal habeas
petition, which has a one-year limitations period; or (2) file a state habeas petition,
which has a three-year limitations period. Doc. 15 at 6.

Mr. Burton is mistaken about the options he had, and his pro se status and lack
of knowledge about state procedural rules is no excuse. Shoemate v. Norris, 390 F.3d
595, 597-98 (8th Cir. 2004) (holding that a petitioner’s misunderstanding of

Arkansas rules, statutes, and the time limitations did not justify equitable tolling).
On April 17, 2024, when Mr. Burton learned that the trial court had denied his Rule
37 petition on August 28, 2023, 128 days remained in the AEDPA limitation period.

At that point, he could have filed a motion seeking permission to file a belated
postconviction appeal pursuant to Arkansas Rule of Appellate Procedure—Criminal
2(e). Rule 2(e) permits an appellant who failed to file a timely notice of appeal to

move for a bleated appeal within eighteen months of the order denying
postconviction relief. Upon such a motion, the Arkansas Supreme Court “may act
upon and decide a case in which the notice of appeal was not . . . filed in the time
prescribed, when a good reason for the omission is shown by affidavit.” Ark. R.

App. P.–Crim. 2(e)
In addition, at any time before the August 23, 2024 federal habeas deadline
expired, Mr. Burton might have avoided AEDPA’s time bar by filing a protective §

2254 petition in federal court and requesting a stay while he exhausted any available
state court remedies.6 Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (noting that a
prisoner seeking state postconviction relief can avoid AEDPA’s time bar by filing a
protective petition in federal court and asking the federal court to stay and abey the

proceedings until state remedies are exhausted). Mr. Burton had time and

6 In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court recognized that when a
federal habeas petition is “mixed” because it contains both exhausted and unexhausted claims, a
district court has discretion to hold the exhausted claims in abeyance while the petitioner presents
the unexhausted claims in state court.
opportunity to exhaust his state remedies and meet the AEDPA deadline, but he
failed to do so.

4. Gateway Actual Innocence Does Not Apply
Mr. Burton asserts that he is actually innocent because the state failed to
present sufficient evidence identifying him as the perpetrator of the crimes. Doc. 2

at 21-23. To the extent that Mr. Burton asserts actual innocence as a gateway for
consideration of his time-barred or procedurally defaulted claims, his argument fails
because he offers no new, reliable evidence of his actual innocence.7 Mr. Burton
contends that the evidence at trial was insufficient to support his convictions, but the

standard for a gateway actual innocence claim is “by no means” equivalent to the
standard governing a claim asserting insufficient evidence. House v. Bell, 547 U.S.
518, 538–39 (2006). The actual innocence standard requires a federal court to assess

how reasonable jurors would react to new evidence that the trial jury did not have
before it, not the evidence presented at trial. Id. Mr. Burton provides no new, reliable
evidence of actual innocence to justify a merits review of his petition.

7 The Eighth Circuit has instructed that a gateway actual innocence claim must satisfy a
two-part test: “First, the petitioner’s allegations of constitutional error must be supported with new
reliable evidence not available at trial.” Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001)
(citing Schlup v. Delo, 513 U.S. 298, 327–28 (1995)). “The evidence is new only if it was not
available at trial and could not have been discovered earlier through the exercise of due diligence.”
Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997). “Second, the petitioner must establish
‘that it is more likely than not that no reasonable juror would have convicted him in light of the
new evidence.’” Armine, 238 F.3d at 1023 (quoting Schlup, 513 U.S. at 327)).
B. Claims 1, 2, 3, and 4 are Procedurally Defaulted8
Federal habeas relief is available to state prisoners only after they have

“exhausted the remedies available” in state court. 28 U.S.C. §§ 2254(b)(1), (c).
Before filing a federal habeas petition, a state prisoner “must give the state courts
one full opportunity to resolve any constitutional issues by invoking one complete

round of the State’s established appellate review process.” O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999).
The exhaustion requirement is technically satisfied when a state procedural
rule makes state remedies unavailable. However, under the independent and

adequate state ground doctrine, “[w]here a petitioner fails to follow applicable state
procedural rules, any claims not properly raised before the state court are
procedurally defaulted.” Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006)

(citing Sawyer v. Whitley, 505 U.S. 333, 338 (1992); Abdullah v. Groose, 75 F.3d
408, 411 (8th Cir.1996)). Thus, when a petitioner fails to fully exhaust a federal
claim in state court and the time for doing so has expired, the claim is procedurally
defaulted. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Likewise, a federal

claim is procedurally defaulted when resolved by a state court pursuant to a “firmly

8 Because a mere three days prevents Mr. Burton’s habeas petition from being timely filed,
I elect to address Respondent’s alternative arguments for dismissal.
established and regularly followed” state procedural rule or practice. Ford v.
Georgia, 498 U.S. 411, 423–24 (1991) (citations omitted).

A petitioner can obtain federal habeas review of a procedurally defaulted
claim only if he can demonstrate: (1) cause for the default and actual prejudice
resulting from the alleged violation of federal law;9 or (2) that the failure to consider

the claim will result in a fundamental miscarriage of justice, such as the conviction
of one who is actually innocent.10 Coleman, 501 U.S. at 750.
1. Claims 1 and 4
Claims 1 and 4 assert the same thing: The prosecution failed to prove that Mr.

Burton was the person who fled law enforcement on August 1, 2021 in a white
Dodge Charger.11 He argues that his convictions “cannot stand when there was no

9 Cause for procedural default must be an external impediment that prevented the petitioner
from complying with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 488, (1986). To
demonstrate prejudice, a petitioner must show “not merely that the errors at trial created a
possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting
the entire trial with error of constitutional dimensions . . . [such that he] was denied fundamental
fairness at trial.” Id. at 494 (internal quotation and punctuation omitted).

10 For reasons previously explained, Mr. Burton does not meet the requirements for
gateway actual innocence. See supra IV.A.4.

11 Mr. Burton labels Claim 4: “Actual Innocence, someone else committed the crime.” Doc.
2, at 21. The substance of the claim, however, attacks the sufficiency of evidence identifying him
as the perpetrator of the crimes of conviction. It is not resolved whether a stand-alone actual
innocence claim is even cognizable. McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013) (citing
Herrera v. Collins, 506 U.S. 390, 404-05 (1993)) (“We have not resolved whether a prisoner may
be entitled to habeas relief based on a freestanding claim of actual innocence.”). In any event, Mr.
Burton’s failure to establish gateway actual innocence means that he cannot make the
“extraordinarily high” showing that would be required to establish a free-standing actual innocence
claim. Dansby v. Hobbs, 766 F.3d 809, 816 (8th Cir. 2014) (citations omitted).
in-court identification of him as the perpetrator of any offense . . . . ” Doc. 2 at 22.
Mr. Burton presented the same claim on direct appeal, and the Arkansas Court of

Appeals held that he failed to preserve the issue for appellate review by seeking a
directed verdict on the fleeing charge as required under Rule 33.1(a) of the Arkansas
Rules of Criminal Procedure. Burton, 2023 Ark. App. 271, at 7. The Court of

Appeals noted that even if the claim were not procedurally barred, “there was
dashcam video introduced from which the jury could have identified appellant.” Id.
In Arkansas, a motion for a directed verdict is treated as a challenge to the
sufficiency of evidence, and Rule 33.1(a) requires that the motion “be made at the

close of the evidence offered by the prosecution and at the close of all evidence [,
and] state the specific grounds therefore.” The failure to challenge the sufficiency of
the evidence at the times and in the manner prescribed by Rule 33.1(a) “will

constitute waiver of any question pertaining to the sufficiency of the evidence to
support the verdict or judgment.” Ark. R. Crim. P. 33.1(c). There is no question that
Rule 33.1’s specificity requirement was “firmly established and regularly followed”
at the time of Mr. Burton’s trial. Barnett v. Roper, 541 F.3d 804, 808 (8th Cir. 2008)

(explaining that only a “firmly established and regularly followed state practice” can
prevent review of a federal claim).
The Arkansas Court of Appeals resolved Mr. Burton’s insufficiency of

evidence claim on an adequate and independent state ground, and the claim is
therefore procedurally defaulted. Mr. Burton offers nothing to support a finding of
cause and prejudice to excuse his procedural default. Nor does he provide new,

reliable evidence of actual innocence to justify a merits review. Claims 1 and 4
should be dismissed, with prejudice
2. Claims 2 and 3

In Claims 2 and 3, Mr. Burton asserts that the State withheld evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963).12 For Claim 2, he alleges that
the State failed to disclose items seized from the Dodge Charger, including women’s
clothing, a black pouch containing 1.2 pounds of a crystal substance, and the identity

of persons named on cards contained in two women’s wallets. Doc. 2 at 18. For
Claim 3, he alleges “from the time of [his] conviction until now, a trickle of post-
trial disclosures [have] unearthed a troubling and striking pattern of deliberate police

suppression of material evidence, . . . [including] sperm and 43 latent fingerprints
lifted from the scene, none of which matched Petitioner.” Id. at 20.
Under Arkansas law, an alleged Brady violation must be raised at trial and on
direct appeal and is not cognizable in a Rule 37 petition. Howard v. State, 367 Ark.

12 In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the Fourteenth
Amendment’s Due Process Clause commands the State to disclose favorable evidence in its
possession or control that is material to guilt or punishment of a criminal defendant. There are
three components to a Brady violation: (1) the evidence at issue must be favorable to the accused,
either because it is exculpatory or has impeachment value; (2) the state must have suppressed the
evidence, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v. Greene,
527 U.S. 263, 281–82 (1999).
18, 27 (2006). Mr. Burton failed to present Claim 2 or 3 at trial or on direct appeal,
he has no remaining non-futile state court remedies,13 and he offers no facts or

argument to support a finding of cause and prejudice to excuse his procedural
default. The government’s suppression of evidence may provide cause to excuse a
procedural default but only where the suppression caused the petitioner’s default.

Dansby v. Payne, 47 F.4th 647, 659 (8th Cir. 2022). With respect to Claim 2, Mr.
Burton knew about the items seized from the Dodge Charger well before trial, and
the State’s suppression did not cause his default.
In addition, Mr. Burton is unable to show prejudice, which requires that the

suppressed evidence is “material” for Brady purposes. Banks v. Dretke, 540 U.S.
668, 691 (2004). Evidence is “material” within the meaning of Brady when there is
a reasonable probability that, had the evidence been disclosed, the result of the

proceeding would have been different. Turner v. United States, 582 U.S. 313, 324
(2017) (quoting Cone v. Bell, 556 U.S. 449, 469–470 (2009)).
Considering the evidence presented at his trial, Mr. Burton cannot show that
the evidence allegedly withheld was material. Officer Trevor Stevenson testified that

he pursued and eventually apprehended Mr. Burton after watching him exit and run

13 The Arkansas Supreme Court has recognized that Brady violations fall within a category
of fundamental errors potentially eligible for a writ of coram nobis, but to qualify for that
extraordinary and rare remedy, a petitioner must demonstrate a reasonable probability that the
judgment of conviction would not have been rendered had the suppressed evidence been disclosed
at trial. Brown v. State, 2022 Ark. 49, 5 (2022).
from the overturned Dodge Charger (Doc. 17-7 at 160), and Officer Trent Behnke
testified that after Mr. Burton fled, no other person remained in the vehicle. Id. at

179. Finally, the Arkansas Court of Appeals noted that “there was dashcam video
introduced from which the jury could have identified appellant.” Burton v. State,
2023 Ark. App. 271, 7 (2023). Claims 2 and 3 should be dismissed, with prejudice.

C. The Arkansas Court of Appeal’s Adjudication of Claim 5 is Due
Deference Under 28 U.S.C. § 2254(d)

Section 2254(d) provides that when a state prisoner’s federal claim has been
adjudicated on the merits in state court, a federal court “shall not” grant an
application for habeas relief unless the state courts’ adjudication: “(1) resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court; 14 or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”15 “The question under [the]

14 A state court decision is “contrary to” clearly established federal law if the state court
either “arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of
law” or “decides a case differently than [the Supreme Court] has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an
“unreasonable application” of Supreme Court precedent if it “identifies the correct governing legal
principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Id.

15 The state court’s factual findings are subject to a deferential standard of review
and presumed correct unless the petitioner can rebut those findings through “clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); see also James v. Bowersox, 187 F.3d 866, 871 (8th Cir. 1999).
Mr. Burton does not challenge the state appellate court’s factual findings.
AEDPA is thus not whether a federal court believes the state court’s determination
was incorrect, but whether that determination was unreasonable—‘a substantially

higher threshold’ for a prisoner to meet.” Shoop v. Twyford, 1596 U.S. 811, 819
(2022) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).
At trial, Mr. Burton moved for a directed verdict on the possession of firearms

by certain persons charge. He stipulated that he had previously been convicted of a
violent felony but argued that the evidence failed to show constructive possession.
The trial court denied his motion, and he challenged that ruling on direct appeal
arguing:

that the firearms were in the trunk; no fingerprint testing was
conducted to show that he handled the firearms; he made no
statements indicating awareness of the firearms; he was not the
registered owner of the vehicle; the license plate was registered to a
couple in Murfreesboro and had been reported stolen by a female in
North Little Rock; nothing found in the vehicle associated him with
the vehicle; women’s clothing was found in the vehicle; and officers
testified that a female named Whitney Reynolds claimed the firearms
found in the vehicle belonged to her.

Burton v. State, 2023 Ark. App. 271, 5 (2023).
The Arkansas Court of Appeals evaluated the merits of Mr. Burton’s
insufficiency of evidence claim according to the following standard:
This court determines whether the verdict is supported by substantial
evidence, direct or circumstantial. Substantial evidence is . . . forceful
enough to compel a conclusion one way or the other beyond suspicion
or conjecture. We view the evidence in the light most favorable to the
verdict, and only evidence supporting the verdict will be considered.
The credibility of witnesses is an issue for the fact-finder. The trier of
fact is free to believe all or part of any witness's testimony and may
resolve questions of conflicting testimony and inconsistent evidence.

Id., 2023 Ark. App. 271 at 4–5. The Arkansas Court of Appeals concluded that
substantial evidence supported a guilty verdict, pointing out that Mr. Burton had
exclusive control of a vehicle with fourteen firearms in the trunk and the details of
his extensive and prolonged flight from law enforcement. The court noted: “[A]n
accused’s suspicious behavior coupled with proximity with the contraband is clearly
indicative of possession. In addition, flight following the commission of an offense

is a factor that may be considered with other evidence in determining guilt.” Id.,
2023 Ark. App. 271 at 6-7 (cleaned up).
In affirming Mr. Burton’s conviction, the Arkansas Court of Appeals

employed a standard arguably more favorable to Mr. Burton than the standard
endorsed by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307,
319 (1979): “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” The Arkansas Court of Appeals adjudicated Mr.
Burton’s claim reasonably, and it decision is entitled to deference under § 2254(d).
Claim 5 should be dismissed, with prejudice.
Conclusion
IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner Timothy Ray Burton’s § 2254 petition for writ of habeas

corpus (Doc. 2) be DISMISSED with prejudice.
2. A certificate of appealability be DENIED. See 28 U.S.C. § 2253(c)(2);
Rule 11(a), Rules Governing § 2254 Cases in United States District Courts.
Dated 18 July 2025.

UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11103920. Public record. Not legal advice.