Varble v. Warden

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
NATHAN VARBLE 	PETITIONER
V. 	CASE NO. 5:25-CV-5187
DEXTER PAYNE, Director,
Arkansas Division of Correction;
THOMAS HURST, Warden, North Central Unit;
TIM GRIFFIN, Arkansas Attorney General 	RESPONDENTS
ORDER
On February 12, 2026, the Honorable Christy Comstock, United States Magistrate
Judge for the Western District of Arkansas, filed a Report and Recommendation (“R&R”)
(Doc. 12) explaining why Nathan Varble’s Amended Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254 should be dismissed. No objections to the R&R were filed, and
the Court entered an Order (Doc. 13) on March 6, 2026, adopting the R&R in its entirety.
Thereafter, on July 29, 2026, Mr. Varble filed a Motion claiming he never received a copy
of the R&R and requesting that the Order adopting the R&R be vacated and the objections
period reinstated. See Doc. 14. The Court granted Mr. Varble’s request, see Doc. 15, and
set a new deadline to file objections. Mr. Varble timely filed objections to the R&R on
August 11, 2026. See Doc. 17. The Court has now reviewed the case de novo in light of
these objections.
On April 11, 2023, Mr. Varble pleaded guilty and was sentenced in Madison County
Circuit Court on two counts of rape (involving an eleven-year old victim and a ten-year-
old victim) and fifteen counts of distributing, possessing, or viewing sexually explicit
Case 5:25-cv-05187-TLB Document 18 Filed 08/13/26 Page 1 of 4 PageID #:
<pageID>

2
conduct 	involving 	a 	child. 	He 	was 	sentenced 	to 	an 	aggregate 	300 	months 	of
imprisonment. There was no direct appeal.
A one-year statute of limitations applies to § 2254 petitions. The R&R explains why
Mr. Varble’s § 2254 petition was untimely:
• 	The limitations accrual date commenced on May 12, 2023, when the state-
court judgment became final.
• 	The limitations clock was paused for fifty-six days (July 5, 2023, through
August 30, 2023) while Mr. Varble sought Rule 37 collateral relief in state
court.
• 	The limitations period expired on Monday, July 8, 2024 (i.e.one year and
fifty-six days after the May 12, 2023, accrual date).
• 	Mr. Varble filed his § 2254 petition on September 8, 2025––one year and
sixty-two days too late.
Mr. Varble does not dispute the timeline, but he made an argument for equitable tolling,
which the Magistrate Judge denied.
Mr. Varble’s first objection to the R&R is that the attorney who filed the Rule 37
motion in state court did a poor job countering the state’s arguments and, after the motion
was denied, failed to appropriately advise Mr. Varble that he had the right to appeal. The
R&R addresses this argument and explains that if Mr. Varble believed he received
ineffective assistance on his Rule 37 motion, his recourse was to file a new Rule 37
motion—which he admittedly did not do. See Doc. 12, p. 10.
Mr. Varble suggests that other facts might exist to support a claim for equitable
tolling; however, he admits he has not yet identified those facts. Instead, he seeks leave
to supply the specifics at a later date. Categorically, he says the grounds will include: “(1)
when he learned the first Rule 37 petition had been denied; (2) what counsel told him
Case 5:25-cv-05187-TLB Document 18 Filed 08/13/26 Page 2 of 4 PageID #:
<pageID>

3
about amendment and appeal; (3) when counsel ceased communicating or providing the
file; (4) his efforts to obtain the state court record and seek assistance; (5) any
documented legal-mail failures; and (6) the dates on which he obtained the evidence and
information necessary to prepare the federal petition.” (Doc. 17, p. 2).
Certainly, Mr. Varble could have provided those details in support of equitable
tolling before now. After all, it has been ten months since Defendants responded to his
Petition and it became ripe for ruling. However, setting aside the lateness issue, the Court
finds it would be futile to permit Mr. Varble more time to file evidence to support his tolling
argument, because none of his proposed grounds are cognizable. See id. For example,
he intends to rely on his pro se status, lack of legal knowledge or legal resources, and/or
confusion about the federal limitations period or state post-conviction law to prove his
entitlement to tolling. None of these reasons justify tolling. See Doc. 12, p. 4 (citing cases).
Next, Mr. Varble argues that he is actually innocent of all charges to which he
pleaded guilty. He is correct that proof of actual innocence can surmount the one-year
jurisdictional bar on filing habeas petitions. However, that is a difficult bar to chin. To do
so, Mr. Varble must point to new, reliable evidence that was not available at trial, and a
likelihood that no reasonable juror would have convicted him in light of that new evidence.
See id. at p. 6 (citing cases). The “new evidence” Mr. Varble cites consists of text
messages that supposedly indicate the child victims now recant their accusations. See
id. at p. 7 (citing to the text messages in the record). The R&R explains why, even if these
text messages qualify as recantation, such testimony is “viewed with great suspicion.” Id.
(citing relevant caselaw). Though Mr. Varble claims that, if given the opportunity, he could
Case 5:25-cv-05187-TLB Document 18 Filed 08/13/26 Page 3 of 4 PageID #:
<pageID>

4
provide “sworn statements from the participants,” he does not have such evidence, and
the likelihood of him acquiring such is nonexistent. (Doc. 17, p. 3). Furthermore, he lacks
new evidence to challenge his other fifteen convictions for distributing, possessing, or
viewing child sexual abuse material. Instead, he asks again for an opportunity to find new
evidence. See id. The Court rejects Mr. Varble’s actual-innocence argument and finds
that his § 2254 Petition is time-barred for the reasons stated in the R&R.
IT IS THEREFORE ORDERED that the objections to the R&R are OVERRULED,
and the R&R is ADOPTED IN ITS ENTIRETY. The case is DISMISSED.
IT IS SO ORDERED on this 13 th day of August, 2026.
___________________________________
TIMOTHY L. BROOKS
CHIEF UNITED STATES DISTRICT JUDGE
Case 5:25-cv-05187-TLB Document 18 Filed 08/13/26 Page 4 of 4 PageID #:
<pageID>