Opinion
NO. 2011-CA-001288-MR
12-14-2012
DAVID CHRISTIAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
NOT TO BE PUBLISHED
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NO. 03-CR-00252
OPINION
AFFIRMING
BEFORE: MAZE, MOORE, AND TAYLOR, JUDGES. MOORE, JUDGE: David Christian, proceeding pro se, appeals the Hopkins Circuit Court's order denying his RCr 11.42 "Memorandum of Law in Support of Motion to Vacate Judgment." After a careful review of the record, we affirm because Christian's "motion" was untimely filed.
Kentucky Rule of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Christian was convicted of murder and sentenced to life imprisonment. The circuit court's judgment was affirmed by the Kentucky Supreme Court on December 22, 2005. See Christian v. Commonwealth, No. 2004-SC-1055-MR, 2005 WL 3500806, *1, *9 (Ky. Dec. 22, 2005) (unpublished).
On November 12, 2009, Christian filed his "Memorandum of Law in Support of Motion to Vacate Judgment Pursuant to RCr 11.42," but he did not file a motion with that memorandum of law. He also filed a motion for an evidentiary hearing and a motion for the appointment of counsel. The circuit court denied his RCr 11.42 "motion" after finding that it was not timely filed and noting that Christian had failed to file an actual "motion" with his memorandum of law. The court also denied Christian's remaining motions.
Christian now appeals, contending that: (a) he should not be faulted for his failure to file a motion with his memorandum; (b) his claims should have been equitably tolled; and (c) he should have been granted an evidentiary hearing and the appointment of counsel.
II. ANALYSIS
A. FAILURE TO FILE A MOTION
Christian first alleges that the circuit court should not have faulted him for his failure to file a motion with his memorandum because he was proceeding pro se in the circuit court. Pursuant to RCr 11.42(2), an RCr 11.42 "motion shall be signed and verified by the movant and shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion." Additionally, the Kentucky Supreme Court has held that
[t]he procedure for obtaining relief pursuant to the provisions of RCr 11.42 must be complied with. The motion for relief must be in writing, verified by the movant, and state specifically the grounds of challenge and the facts in support thereof. . . . It is jurisdictional that the terms and provisions of RCr 11.42 must be complied with, even though a substantial, and not an absolute, compliance is adequate.Cleaver v. Commonwealth, 569 S.W.2d 166, 169 (Ky. 1978).
In the present case, Christian did not file an RCr 11.42 motion; rather, he filed a pro se "Memorandum of Law in Support of Motion to Vacate Judgment Pursuant to RCr 11.42." The memorandum was in writing; Christian's signature was at the end of the memorandum, but his address was not included; a notary public's signature was at the end of the memorandum, as well as the date of the notary's signature; and the memorandum stated the grounds of challenge and the facts in support of the claims. We note, without holding, that this is likely enough to qualify as "substantial compliance" with the requirements of RCr 11.42. Regardless, Christian's appeal fails for the reasons discussed in the following paragraphs.
B. EQUITABLE TOLLING
Christian next contends that his claims should have been equitably tolled. Pursuant to RCr 11.42(10),
[a]ny motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:
(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
In the present case, the Kentucky Supreme Court affirmed the circuit court's judgment on direct appeal on December 22, 2005. See Christian v. Commonwealth, No. 2004-SC-1055-MR, 2005 WL 3500806, *1, *9 (Ky. Dec. 22, 2005) (unpublished). The opinion became final twenty-one days later, on January 12, 2006, pursuant to CR 76.30(2)(a), and it does not appear that Christian appealed to the United States Supreme Court. Thus, his "motion" under RCr 11.42, which was filed on November 12, 2009, was untimely because it was filed more than three years after his judgment became final. Additionally, neither of the exceptions listed in RCr 11.42(10) applies because Christian does not contend that the facts upon which his claims are based could not have been ascertained by the exercise of due diligence, or that his claims are based on a constitutional right that was not available during the three-year time period.
However, Christian alleges that his claims should be equitably tolled because
The Commonwealth argues that Christian did not allege in the circuit court that his claims should be equitably tolled and, therefore, that we should not consider this allegation. However, in his reply to the Commonwealth's response to his RCr 11.42 "motion" that was filed in the circuit court, Christian asserted that the legal library at the Lee County Detention Center had burnt down. Therefore, we will review Christian's allegation that he is entitled to equitable tolling.
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he was sent to the Lee County Detention Center on February 14, 2005, just after a prison riot there that specifically resulted in the prison's legal library being burnt down. He remained at this institution until December 2006. There was a complete denial of access to the courts during this time for the appellant due to there being absolutely no legal library at the facility where he was being held in custody.
The Commonwealth notes in its brief that the Kentucky Supreme Court adopted the United States Court of Appeals for the Sixth Circuit's test for equitable tolling in RCr 11.42 cases in Robertson v. Commonwealth, 177 S.W.3d 789, 792 (Ky. 2005), but subsequently overruled Robertson, at least in regard to prison mailbox rule cases, in Hallum v. Commonwealth, 347 S.W.3d 55, 59 (Ky. 2011). Yet, even if the Robertson equitable tolling test still applies in non-prison mailbox rule cases such as the present one, Christian still is not entitled to equitable tolling. Robertson set forth the following equitable tolling test:
(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim.Robertson, 177 S.W.3d at 792 (citing Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001)).
Christian states that he remained at the Lee County Detention Center until December 2006. During the time he was at the Lee County Detention Center, he contends that it lacked a legal library due to a fire. He was moved from the Lee County Detention Center in December 2006, the same month that the Kentucky Supreme Court affirmed the judgment against him. The Supreme Court's decision did not become final until the following month, yet Christian did not file a petition for rehearing or request an extension of time to file a petition for rehearing, despite the fact he was no longer incarcerated at the Lee County Detention Center for much, if not all, of the time period in which he could have filed a petition for rehearing. Furthermore, he does not contend that the facility where he was subsequently incarcerated lacked a legal library, yet it still took him more than three years to file his RCr 11.42 "motion." He does not allege that he had no notice or knowledge of the filing requirement, and he did not exercise due diligence in pursuing his rights. Thus, Christian's claims are not entitled to equitable tolling.
When an RCr 11.42 motion is filed after the three-year period for filing such motions has expired, the trial court does not have jurisdiction to adjudicate the motion, and "this Court is similarly without jurisdiction to hear any appeal therefrom." Bush v. Commonwealth, 236 S.W.3d 621, 623 (Ky. App. 2007). Consequently, Christian's appeal from the denial of his RCr 11.42 "motion" is dismissed, and we will not consider his remaining claims.
Accordingly, the order of the Hopkins Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: David Christian
Pro se
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky