Opinion
Case No. A1-04-51, Docket Number: 3
May 5, 2004
ORDER DISMISSING HABEAS CORPUS PETITION WITH PREJUDICE
Summary : A defendant who had been convicted in state court of two counts of gross sexual imposition filed a petition for habeas corpus relief pursuant 2254. The Court summarily dismissed the petition on grounds that it was time barred under 28 U.S.C. § 2244(d).
Before the Court is Petitioner Bruce Entzi's pro se petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody. For the reasons outlined below, the Court finds the petition is untimely.
I. BACKGROUND
On October 19, 1999, a jury found the petitioner, Bruce Entzi, guilty on two counts of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(2)(a). The trial court sentenced Entzi to tens years imprisonment, with five years suspended, and supervised probation. Entzi appealed his conviction to the North Dakota Supreme Court, asserting, among other things, that he did not request jury selection be conducted off the record, he did not waive his right to have jury selection conducted on the record, the trial court conducted jury selection improperly, the trial court abused its discretion by failing to excuse four jurors for actual or implied bias, and the trial court abused its discretion in refusing a timely request for a sentencing hearing in McIntosh County and conducting the sentencing in Burleigh County. On July 24, 2000, the North Dakota Supreme Court entered an order affirming the jury verdict and remanded the matter for resentencing in McIntosh County. See State v. Entzi, 615 N.W.2d 145 (N.D. 2000).
On March 24, 2004, Entzi filed a petition for post-conviction relief in state court along with a request for appointment of counsel. On March 31, 2004, the state court appointed attorney Todd Schwarz to represent Entzi. On April 19, 2004, the state court dismissed the majority of claims set forth in Entzi's petition and scheduled an evidentiary hearing on the remaining claims.
On April 29, 2004, Entzi filed a petition for habeas corpus relief with this Court. Entzi's petition contains the following claims:
(1) bias jurors, more than one remained seated on the jury after improper selection procedures (all peremptory challenges used) and violation of Jury Selection and Procedure Act, and equal protection [clause].
(2) coerced confession and or privilege against self-incrimination, an illegal stipulation was put in the record on appeal that was not read in court by the Judge, however the transcript shows it was, but other parts of the transcript reveal the truth.
(3) illegal tape recording in violation of 18 U.S.C. § 2510(a) and prohibited by 18 [U.S.C.] § 2515 and a 4th Amendment violation and in violation of N.D.R. of Ev. Rule 802 and 404.
(4) unfounded or prejudicial innuendo's (sic) which is a N.D.C.C. criminal violation, was inserted into the State's trial brief. The prosecutor made many other prejudicial innuendo's (sic). . . .
(5) the voir dire was requested to be recorded by trial counsel however that request was denied, by District Judge Haskell.
(6) false statement by witness during testimony (Lee Ann Culver)
(7) jurors were called off from a clip board during voir dire.
(8) change of venue and the Court letting trial Counsel withdraw.
(9) ineffective assistance of trial counsel.
(10) bailiff was not allowed to bring the jurors into the open court room on two occasions to hear testimony which was taken during trial.
(11) ineffective assistance of appellate counsel (fraudulent counsel).
(12) fraud by the North Dakota Supreme Court and the District Court.
(13) fraud, by deleting and adding parts to the written transcript which is not in the audio tape.II. LEGAL DISCUSSION
Entzi's petition for habeas corpus relief is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The AEDPA imposes a one-year statute of limitations for filing federal habeas petitions. See 28 U.S.C. § 2244(d). The one-year statute of limitations begins to run on the latest of the following four dates:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)(A)-(D). The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation. 28 U.S.C. § 2244(d)(2). There is nothing in Entzi's petition that renders subsections (B), (C), or (D) applicable. Therefore, Kunze's limitation period is governed by 28 U.S.C. § 2244(d)(1)(A).
According to the Eighth Circuit Court of Appeals, the running of the one-year statute of limitations imposed by 28 U.S.C. § 2244(d)(1)(A) is triggered by either:
(1) the conclusion of all direct criminal appeals in the state system, followed by either the completion or denial of certiorari proceedings before the United States Supreme Court; or (2) if certiorari was not sought, then by the conclusion of all direct criminal appeals in the state system followed by the expiration of the time allotted for filing a petition for the writ.Nichols v. Bowersox, 172 F.3d 1068, 1072 (8th Cir. 1999).
In this case, the conclusion of all direct criminal appeals in the state system occurred on July 24, 2000, when the North Dakota Supreme Court affirmed Entzi's conviction and remanded the matter for resentencing. The one-year statute of limitations began to run on or about October 23, 2000, which is ninety (90) days after the North Dakota Supreme Court entered an order affirming Entzi's conviction. See Beery v. Ault, 312 F.3d 948, 950 (8th Cir. 2002) (the "expiration of time for seeking direct review" must include the ninety day period within which a petitioner may file a writ of certiorari to the United States Supreme Court); Williams v. Bruton, 299 F.3d 981, 982 (8th Cir. 2002); Kreutzer v. Bowersox, 231 F.3d 460, 461 (8th Cir. 2000); Nichols v. Bowersox, 172 F.3d 1068, 1072 (8th Cir. 1999). As a result, the one-year statute of limitations period would have expired on or about October 23, 2001. See 28 U.S.C. § 2244(d)(1)(A).
As previously noted, the AEDPA's statute of limitations is subject to tolling. See Cross-Bey v. Gammon, 322 F.3d 1012, 1014 (8th Cir. 2003). The statute itself contains a tolling provision which provides that "the time during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). However, this provision does not apply in the present case. It is clear and undisputed there were no state court applications for post-conviction relief pending during the relevant one-year statute of limitations time period. As noted, Entzi's one-year statute of limitations period expired on or about October 23, 2001, which was one year plus ninety (90) days after the North Dakota Supreme Court affirmed Entzi's conviction. However, Entzi did not file a petition for post-conviction relief in state court until March 24, 2004-more than two years after the statute of limitations for filing a petition in federal court had lapsed. As a result, it is clear that the petition filed by Entzi presently before the Court is untimely.
In addition to the statutory tolling provision, the AEDPA's statute of limitations may be tolled as a matter of equity. See Cross-Bey v. Gammon, 322 F.3d 1012, 1014 (8th Cir. 2003). "[E]quitable tolling is proper when there exist extraordinary circumstances beyond a prisoner's control that made filing a timely petition impossible or when the respondent's conduct has lulled the petitioner into inaction." Id. at 1015. "[A]ny invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes." Id. (quoting Flanders v. Graves, 299 F.3d 974, 976 (8th Cir. 2002), cert. denied, 123 S.Ct. 1361, (2003)).
This case presents no extraordinary circumstances which made it impossible for Entzi to file a timely petition. The Court concludes that equitable tolling is neither appropriate nor warranted in this case as Entzi was afforded more than sufficient time to pursue habeas corpus relief in federal court in a timely manner.
III. CONCLUSION
The Court finds that the petition for habeas corpus relief submitted by Bruce Entzi is time-barred under 28 U.S.C. § 2244(d)(1)(A). The Court ORDERS that Entzi's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Docket No. 1) be DISMISSED with prejudice. The Court certifies that any appeal would be frivolous, cannot not be taken in good faith, and may not be taken in forma pauperis. Further, the Court finds that dismissal of this petition is not reasonably subject to a different outcome on appeal, or otherwise deserving of further proceedings. See Barefoot v. Estelle, 463 880, 893, n. 4 (1983). Therefore, the Court will not issue a certificate of appealability in this matter.