Perry v. Kelley, No. 5:2017cv00039 - Document 18 (E.D. Ark. 2018)

Court Description: ORDER adopting 12 Proposed Findings and Recommendations in their entirety as this Court's findings in all respect; denying as moot 16 Mr. Perry's motion to stay proceedings to conduct postconviction competency hearing; dismissing with prejudice 2 petition for writ of habeas corpus; and denying the requested relief. A certificate of appealability is denied. Signed by Judge Kristine G. Baker on 5/1/2018. (cmn) (Docket entry modified on 5/2/2018 to correct the file date) (jak)

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Perry v. Kelley Doc. 18 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION KIYWUAN PERRY v. PETITIONER Case No. 5:17-cv-00039-KGB WENDY KELLEY, in her official Capacity as Director of the Arkansas Department of Correction RESPONDENT ORDER Before the Court are the Proposed Findings and Recommendations of Magistrate Judge Jerome T. Kearney (“Proposed Findings”) (Dkt. No. 12). Plaintiff Kiywuan Perry filed timely his objections to proposed findings and recommendations (Dkt. No. 15). Also, pending before the Court is Mr. Perry’s motion to stay proceedings to conduct postconviction competency hearing (Dkt. No. 16). After careful consideration of the Proposed Findings and Recommendations, Mr. Perry’s timely objections, and a de novo review of the record, the Court adopts the Proposed Findings and Recommendations in their entirety as this Court’s findings in all respects (Dkt. No. 12). Mr. Perry’s motion to stay proceedings to conduct postconviction competency hearing is denied as moot (Dkt. No. 16). Judgment shall be entered accordingly. The Court writes separately to address Mr. Perry’s objections. Mr. Perry states that he has attached to his objections documents concerning his mental health (Dkt. No. 15). Mr. Perry states that these documents show that he is entitled to equitable tolling of his untimely federal habeas petition due to mental illness (Id.). The Court notes that no documents are attached to Mr. Perry’s objection. However, several documents are attached to Mr. Perry’s motion to stay (Dkt. No. 16). These documents contain what appear to be mental health diagnoses and observation remarks for Mr. Perry from 2004 to 2009 (Id. at 5-26). Like the documents attached to Mr. Perry’s petition Dockets.Justia.com (Dkt. No. 2), these documents “are entirely unrelated to the relevant time period for which the statute of limitations was running on his federal filing period” (Dkt. No. 12, at 5). Accordingly, Mr. Perry’s federal petition is time-barred, as he has failed to provide evidence of the extraordinary circumstances required for the Court to equitably toll the statute of limitations in a habeas action. Therefore, the Court orders that: 1. Mr. Perry’s petition for writ of habeas corpus is dismissed with prejudice, and the requested relief is denied (Dkt. No. 2). 2. Mr. Perry’s motion to stay proceedings to conduct postconviction competency hearing is denied as moot (Dkt. No. 16). 3. A certificate of appealability is denied. So ordered this the 1st day of May, 2018. ________________________________ Kristine G. Baker United States District Judge 2

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