Opinion
Case No. 2:03-CV-103 DB
May 29, 2004
ORDER
Petitioner, John Edward Conrad, an inmate at Duchesne County Jail, filed a habeas corpus petition. See 28 U.S.C.A. § 2254 (West 1994 Supp. 2003). On March 18, 2004, the Court ordered Petitioner to show cause why his petition should not be dismissed because he failed to file within the applicable one-year period of limitation. See id. § 2244(d) (Supp. 2003).
In response, Petitioner excuses his failure to timely file his petition by asserting that: (1) he was "in R/O for three months"; (2) he has inadequate legal resources in prison — i.e., contract attorneys did not help him how he wanted; (3) he depends on other inmates for legal help; (4) he did not know he had only one year to file a federal habeas corpus petition; and (5) he has a reading and writing disability. Petitioner's assertions amount to an argument that the Court should apply equitable tolling to rescue him from the operation of the period of limitation.
"It must be remembered that § 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling." Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). While demanding that prisoners diligently pursue their claims, the one-year limit starts to run based on certain factors that could reasonably influence the remedy's availability. Id. However, "[e]quitable tolling will not be available in most cases, as extensions of time will only be granted if `extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Calderon v. United States Dist. Court, 128 F.3d 1283, 1288 (9th Cir. 1997) (citation omitted). Those circumstances include times "when a prisoner is actually innocent" or "when an adversary's conduct-or other uncontrollable circumstances — prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period." Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citation omitted). And, Petitioner "has the burden of demonstrating that equitable tolling should apply." Lovato v. Suthers, No. 02-1132, 2002 WL 1500844, at *2 (10th Cir. July 15, 2002) (unpublished opinion).
With these general principles in mind, the Court considers Petitioner's specific arguments. First, Petitioner justifies his late filing by stating that he was "in R/O for three months." The Court infers that this is some kind of administrative detention or holding cell. However, imprisonment in such a situation does not call for equitable tolling. See Szczygiel v. Nelson, No. 01-3374, 2002 U.S. App. LEXIS 7613, at *5-6 (Apr. 25, 2002) (unpublished). And, Petitioner does not specify how his three-month stay "in R/O" prevented him from pursuing his federal habeas remedies within the one year available to him.
Second, Petitioner's conclusory allegation that the prison contract attorneys did not give him appropriate legal materials and help is also unavailing. Indeed, Petitioner concedes he had the petition form to fill out, but did not want to do it himself. During the time Petitioner was apparently seeking the contract attorneys' help, he took no steps himself to "diligently pursue his federal claims.". Miller, 141 F.3d at 978; cf. Pelz v. Shoecraft, No. 02-7099, 2003 WL 1153310, at *1 (10th Cir. Mar. 14, 2003) (unpublished) ("`Mere attorney negligence does not justify equitable tolling.' A petitioner must also proceed with diligence in pursuing h[is] claims.") (quoting Steed v. Head, 219 F.3d 1298, 1300 (llth Cir. 2000)); Loving v. Mahaffey, No. 01-7063, 2001 WL 1564057, at *1 (10th Cir. Dec. 10, 2001) (unpublished) (holding no equitable tolling when petitioner's "attorney abandoned him and did not file a notice of appeal as requested"); Smallwood v. Gibson, 191 F.3d 1257, 1266 n. 4 (10th Cir. 1999) ("`There is no constitutional right to an attorney in [habeas corpus] proceedings.'") (quoting Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566 (1991)).
Third, Petitioner's reliance on other prisoners for legal help is not an extraordinary circumstance warranting equitable tolling. See Marsh v. Soares, 223 F.3d 1217, 1220-21 (10th Cir. 2000). Neither is his excuse that he did not realize he had but one year in which to file his federal habeas petition. After all, "[i]gnorance of the law generally will not excuse timely filing, even for an incarcerated pro se prisoner." Lovato, 2002 WL 1500844, at *2. And, finally, Petitioner's illiteracy does not support equitable tolling. See Alexander v. Watkins, No. 02-1171, 2002 WL 31265956, at *1 (10th Cir. Oct. 9, 2002), cert. denied. 537 U.S. 1199, 123 S.Ct. 1296 (2003). The Court notes that despite Petitioner's disability he has ably presented his arguments in his own writing.
Because Petitioner has suggested no circumstance outside himself to explain his failure to diligently pursue his federal habeas claims, IT IS ORDERED that Petitioner's petition is denied as untimely. See 28 U.S.C.A. § 2244(d) (West Supp. 2003).