Diaz v. Milyard

7 Citing cases

  1. Armstrong v. Campbell

    CASE NO. 2:16-CV-13449 (E.D. Mich. Nov. 8, 2016)   Cited 1 times

    The unavailability of transcripts and other documents, or the delay in obtaining them, is not a circumstance which justifies equitable tolling of a limitations period. See Hall v. Warden, Lebanon Correctional Inst., 662 F.3d 745, 750-51 (6th Cir. 2011) (citing cases); Grayson, 185 F. Supp. 2d at 751-52; see also Diaz v. Milyard, 314 F. App'x 146, 148 (10th Cir. 2009) (petitioner not entitled to equitable tolling based on lack of court records and transcripts where he did not request records until four years after limitations period began to run); Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001) (noting that a petitioner has the option of filing a timely petition and then seeking discovery and amending the petition) Petitioner also indicates that he has "mental problems" and that no one would provide him with legal assistance due to his lack of funds.

  2. Echols v. Maclaren

    CASE NO. 15-CV-14234 (E.D. Mich. Jan. 12, 2016)

    The unavailability of transcripts and other documents, or the delay in obtaining them, is not a circumstance which justifies equitable tolling of a limitations period. See Hall v. Warden, Lebanon Correctional Inst., 662 F.3d 745, 750-51 (6th Cir. 2011) (citing cases); Grayson, 185 F. Supp. 2d at 751-52; see also Diaz v. Milyard, 314 F. App'x 146, 148 (10th Cir. 2009) (petitioner not entitled to equitable tolling based on lack of court records and transcripts where he did not request records until four years after limitations period began to run). Petitioner's requests for transcripts or other documents also do not toll the one-year period.

  3. Williams v. Hoffner

    CASE NO. 2:15-CV-11435 (E.D. Mich. Nov. 23, 2015)

    The unavailability of transcripts and other documents, or the delay in obtaining them, is not a circumstance which justifies equitable tolling of a limitations period. See Hall v. Warden, Lebanon Correctional Inst., 662 F.3d 745, 750-51 (6th Cir. 2011) (citing cases); Grayson, 185 F. Supp. 2d at 751-52; see also Diaz v. Milyard, 314 F. App'x 146, 148 (10th Cir. 2009) (petitioner not entitled to equitable tolling based on lack of court records and transcripts where he did not request records until four years after limitations period began to run). Petitioner's requests for transcripts or other legal materials also do not toll the one-year period.

  4. Townsend v. Hoffner

    CASE NO. 2:13-CV-14187 (E.D. Mich. Jul. 1, 2014)   Cited 2 times

    In light of the foregoing, Petitioner's requests for transcripts, police or medical records, and other legal materials do not operate to toll the one-year period, nor does the State's alleged delay in producing the requested documents. See, e.g., id. at 750-51; Lloyd v. VanNatta, 296 F.3d 630, 633-34 (7th Cir. 2002); Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001) (noting that a prisoner has the option of filing a timely petition and then seeking discovery and amending the petition); Williams v. Vasbinder, No. 05-74371, 2006 WL 2123908, at *4 (E.D. Mich. 2006) (denying such tolling); cf. Diaz v. Milyard, 314 F. App'x 146, 148 (10th Cir. 2009) (petitioner not entitled to equitable tolling based on lack of court records and transcripts where he did not request records until four years after limitations period began to run). Additionally, the fact that Petitioner is untrained in the law, is (or was) proceeding without a lawyer, or may have been unaware of the statute of limitations for a certain time does not warrant tolling.

  5. Robinson v. McKee

    CASE NO. 5:13-CV-13145 (E.D. Mich. Mar. 12, 2014)   Cited 1 times

    This long span of time with no attempt by petitioner to pursue his rights suggests a lack of diligence. See Hall v. Warden, Lebanon Correctional Inst., 662 F.3d 745, 751 (6th Cir. 2011) (petitioner's failure to pursue his rights in five month period in which he still had time to file habeas petition "suggests a lack of diligence."); Diaz v. Milyard, 314 Fed. Appx. 146, 148 (10th Cir. 2009) (petitioner not entitled to equitable tolling based on lack of access to court records and transcripts where petitioner did not request such records until four years after limitations period began to run). Accordingly, the Court should conclude that petitioner is not entitled to equitable tolling of the limitations period.

  6. Primero v. Janecka

    No. CIV 09-113 JB/GBW (D.N.M. Sep. 30, 2009)

    As with all equitable tolling arguments, Primero bears the burden of demonstrating that equitable tolling is appropriate. See Diazv. Milyard, 314 Fed. Appx. 146, 148 (10th Cir. 2009) (citingYang v. Archuleta, 525 F.3d at 928). Equitable tolling based upon alleged innocence may be appropriate even where the petitioner pled guilty and waived his right to a trial, but the burden to substantiate his claim is heavier.

  7. Rodriguez v. Attorney General of State of New Mexico

    CIV 08-0987-JB-GBW (D.N.M. Sep. 8, 2009)

    Moreover, Petitioner bears the burden of demonstrating that equitable tolling is appropriate. Diaz v. Milyard, 314 F. App'x. 146, 148 (10th Cir. 2009) (citing Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008)). Equitable tolling based upon alleged innocence may be appropriate even where the petitioner pled guilty and waived his right to a trial, but his burden to substantiate his claim is heavier.