Opinion
No. 5:12-cv-280-DPM-BD
08-26-2014
JUSTIN ANDERSON PETITIONER v. RAY HOBBS, Arkansas Department of Correction RESPONDENT
ORDER
1. On de novo review, the opposed recommendation, No 25, is adopted. FED. R. CIV. P. 72(b)(3). Because Anderson hasn't exercised reasonable diligence under the circumstances, the Court agrees that § 2244(d)(1)(A), not (d)(1)(D), governs the one-year clock. Anderson's petition is therefore time barred; and, for the reasons stated by Magistrate Judge Deere, Anderson isn't entitled to equitable or statutory tolling.
2. The Trevino/Martinez exception doesn't apply to the limitations issue. It's a matter of procedural-default law. Trevino v. Thaler, 133 S. Ct. 1911 (2013); Martinez v. Ryan, 132 S. Ct. 1309 (2012). Anderson, though, makes a novel and somewhat persuasive argument to the contrary. The Court has found no supporting authority directly on point. For the Court to issue a certificate of appealability, Anderson has two hurdles to top. He's across the first one; reasonable judges could disagree about the reach of Trevino and Martinez's reasoning. Slack v. McDaniel, 529 U.S. 473, 484 (2000). But he falters at the second; Anderson hasn't made the substantial showing of a violation of a constitutional right. 529 U.S. at 484-85; 28 U.S.C. § 2253(c)(2).
3. Objections, Nq 26, overruled. Recommendation, No 25, adopted.
So Ordered.
/s/_________
D.P. Marshall Jr.
United States District Judge