McKinney v. Payne

Opinion

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION KWASI MCKINNEY PETITIONER ADC #137065

No. 4:22-cv-811-DPM DEXTER PAYNE, Director, ADC RESPONDENT

ORDER 1. On de novo review, the Court adopts the recommendation, Doc. 15, and overrules McKinney’s objections, Doc. 17. Fed. R. Civ. P. 72(b)(3). McKinney’s petition will be dismissed with prejudice. 2. Motion to stay the case and for appointment of counsel, Doc. 23, denied. Morris v. Dormire, 217 F.3d 556, 558 (8th Cir. 2000). 3. Motion to amend, Doc. 21, denied. McKinney says that prison officials have destroyed or withheld transcripts, legal books, and numerous legal documents, pleadings, and court documents over the past couple of years. His motion is, in effect, a (belated) argument for equitable tolling. The confiscation of legal papers can qualify as an extraordinary circumstance justifying tolling. Compare United States v. Gabaldon, 522 F.3d 1121, 1125 (10th Cir. 2008), with Gassler v. Bruton, 255 F.3d 492, 495 (8th Cir. 2001). But McKinney did not pursue his federal habeas rights diligently. Williams v. Kelley, 830 F.3d 770,773 (8th Cir. 2016). The alleged confiscation of his legal papers did not stop him

from filing a variety of papers in state court. See Table in Doc. 15 at 8. Yet he did not file his petition here until September 2022. Equitable tolling does not save McKinney from procedural default. 4, Motion for a certificate of appealability, Doc. 18, denied. McKinney has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). 5. Motions for copies, Doc. 31 & 32, granted. The Court directs the Clerk to send McKinney copies of Doc. 5 & 9. & & Recommendation, Doc. 15, adopted. Objections, Doc. 17, overruled. Motions for copies, Doc. 31 & 32, granted. Motions, Doc. 18, 21 & 23, denied. So Ordered. SPrgrsthell D.P. Marshall Jr. United States District Judge □□ et Supttan her A023

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