                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3705
                                   ___________

Melvin Shoemate,                       *
                                       *
            Petitioner-Appellant,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Arkansas.
Larry Norris, Director, Arkansas       *
Department of Correction,              *
                                       *
            Respondent-Appellee.       *
                                  ___________

                             Submitted: September 14, 2004
                                Filed: November 15, 2004
                                 ___________

Before RILEY, LAY, and MELLOY, Circuit Judges.
                            ___________

LAY, Circuit Judge.

       An entry of judgment convicting Melvin Shoemate of rape was filed in
Arkansas state court on May 8, 1997. After the entry of judgment, Shoemate had
thirty days in which to file a notice of direct appeal under Arkansas law. Ark. R.
App. P. Crim. 2(a). Shoemate’s wife filed a notice of appeal on his behalf within
thirty days of the judgment. However, the Arkansas Supreme Court returned the
notice of appeal on July 8, 1997, because it was not filed by Shoemate or a licensed
attorney. Thereafter, Shoemate could file a motion for belated appeal within eighteen
months of the entry of judgment. Ark. R. App. Crim. P. 2(e). He could also file a
petition for post-conviction relief within ninety days of the entry of judgment.
Ark. R. Crim. P. 37. Shoemate filed a motion for belated appeal alleging ineffective
assistance of counsel. After finding that Shoemate never requested that his attorney
file a notice of appeal, the Arkansas Supreme Court denied his motion for belated
appeal on March 26, 1998. Shoemate v. State, 965 S.W.2d 779 (Ark. 1998).
Shoemate then attempted to file a Rule 37 petition for post-conviction relief under the
Arkansas Rules of Criminal Procedure.1 The Arkansas courts found that Shoemate’s
petition for post-conviction relief was not timely since the motion for belated appeal
did not constitute a direct appeal within the meaning of Rule 37. Shoemate v. State,
5 S.W.3d 446 (Ark. 1999). Shoemate was thus required to file his petition for post-
conviction relief within ninety days of the entry of judgment. Id. at 447-48.

       On November 28, 2000, Shoemate filed his federal habeas petition in district
court. The district court2 found that Shoemate’s Rule 37 petition was not timely filed
in the Arkansas courts under § 2244(d)(2) of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) 28 U.S.C. § 2244(d), and counted the time in which

      1
       Rule 37.2(c) provides in relevant part:

             If . . . the petitioner was found guilty at trial and did not appeal the
      judgment of conviction, a petition claiming relief under this rule must
      be filed in the appropriate circuit court within ninety (90) days of entry
      of judgment . . . .

             If an appeal was taken of the judgment of conviction, a petition
      claiming relief under this rule must be filed in the circuit court within
      sixty (60) days of the date the mandate was issued by the appellate court.
      In the event an appeal was dismissed, the petition must be filed in the
      appropriate circuit court within sixty (60) days of the date the appeal
      was dismissed . . . .
      2
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas, adopting the Proposed Findings and Recommended
Disposition of the Honorable Jerry W. Cavaneau, United States Magistrate Judge for
the Eastern District of Arkansas.

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his Rule 37 petition was pending toward the one-year limitations period under the
AEDPA. The untimeliness of Shoemate’s Rule 37 petition in the Arkansas courts
thus led to the denial of his habeas petition in federal court. Shoemate argued that the
district court should equitably toll the period in which his Rule 37 petition was
pending. The district court denied his petition and issued a certificate of appealability
on the issue of equitable tolling.

       Although the AEDPA imposes a one-year statute of limitations on habeas
petitions, it is a true statute of limitations rather than a jurisdictional bar.3 The statute
is thus subject to equitable tolling in appropriate circumstances. Kreutzer v.
Bowersox, 231 F.3d 460, 463 (8th Cir. 2000), cert. denied, 534 U.S. 863 (2001).
Equitable tolling is appropriate when (1) extraordinary circumstances beyond a
prisoner’s control make it impossible to file a petition on time, or (2) when conduct
of the defendant has lulled the prisoner into inaction. Id. The doctrine applies “only
when some fault on the part of the defendant has caused a plaintiff to be late in filing,
or when other circumstances, external to the plaintiff and not attributable to his
actions, are responsible for the delay.” Flanders v. Graves, 299 F.3d 974, 977 (8th
Cir. 2002). Because the doctrine is reserved for extraordinary circumstances, it gives
the plaintiff an “exceedingly narrow window of relief.” Jihad v. Hvass, 267 F.3d 803,
805 (8th Cir. 2001).


       3
        The one-year limitations period of the AEDPA begins to run at “the date on
which the judgment became final by the conclusion of direct review or the expiration
of the time for seeking such review.” § 2244(d)(1)(A). The magistrate judge and the
district court assumed without deciding that the five-month period from the entry of
judgment on May 8, 1997, to the time when Shoemate filed his motion for belated
appeal on October 9, 1997, would be tolled for purposes of the AEDPA. Because it
is unnecessary to pass on this issue in this case, we will assume the same without
deciding the matter. See Wright v. Norris, 299 F.3d 926, 929 & n.3 (8th Cir. 2002)
(assuming without deciding that Arkansas post-conviction proceedings remain
pending during the time that the Arkansas Supreme Court will hear a motion for
belated appeal).

                                            -3-
       Shoemate argues that the time between March 26, 1998, when he filed his Rule
37 petition, and December 2, 1999, when his Rule 37 petition was denied as untimely,
should be equitably tolled to bring his habeas petition within the one-year limitations
period. He argues that he was “lulled into inaction” by Arkansas Supreme Court
decisions which prohibited the filing of a Rule 37 petition and a motion for belated
appeal at the same time. Shoemate contends that under Arkansas law, if a defendant
wishes to assert that his attorney is ineffective for failure to file a notice of appeal, the
proper method to seek relief is through a motion for belated appeal within eighteen
months. Robbins v. State, 705 S.W.2d 6, 7 (Ark. 1986); Lomax v. State, 688 S.W.2d
283, 285 (Ark. 1985). A Rule 37 petition cannot be a substitute for a timely motion
for belated appeal. Robbins, 705 S.W.2d at 8. Shoemate argues that the Arkansas
Supreme Court’s decisions require that the remedies be pursued separately, and has
“repeatedly held that [Rule 37] post-conviction relief . . . is not available while an
appeal is pending.” Brewer v. State, 621 S.W.2d 698, 699 (Ark. 1981); L.T. Tapp v.
State, 920 S.W.2d 482, 483 (Ark. 1996). According to Shoemate, the Arkansas
Supreme Court required that he first pursue a claim for ineffective assistance of
counsel via a motion for belated appeal. Only after his motion for belated appeal was
concluded could he seek Rule 37 post-conviction relief. Because he followed the
path charted by the Arkansas Supreme Court, Shoemate argues that he was “lulled
into inaction” by its decisions. The time in which his Rule 37 petition was pending
should thus be equitably tolled to fall within the one-year statute of limitations of the
AEDPA.

       We find that equitable tolling is not warranted and we deny Petitioner’s
argument for the same reasons as set forth by the district court. Shoemate’s failure
to file his habeas petition within the one-year limitations period was due to his
misunderstanding of the proper procedures for filing a Rule 37 petition under
Arkansas law. The delay was not an extraordinary circumstance, nor was it due to
affirmative conduct on the part of the state. In making his recommendations to the
district court supporting the dismissal of the habeas petition, the magistrate judge

                                            -4-
found that “pro se status, lack of legal knowledge or legal resources, confusion about
or miscalculations of the limitations period, or the failure to recognize the legal
ramifications of actions taken in prior post-conviction proceedings are inadequate to
warrant equitable tolling.” See e.g., Kreutzer, 231 F.3d at 463 (holding that “[e]ven
in the case of an unrepresented prisoner alleging a lack of legal knowledge or legal
resources, equitable tolling has not been warranted”); Jihad, 267 F.3d at 805-07
(finding that an unsuccessful search for counsel could not warrant equitable tolling);
Graves, 299 F.3d at 976-77 (finding that a claim of actual innocence could not justify
equitable tolling). We hold that Petitioner’s misunderstanding of the Arkansas rules,
statutes, and the time period set forth therein do not justify equitable tolling.

      The judgment of the district court is AFFIRMED.
                     ______________________________




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