Opinion
Civil Action No. 5:04CV-P83-R.
December 22, 2004
MEMORANDUM OPINION
The petitioner, Janice Ford, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is currently before the court for preliminary consideration under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Because the court determined that the petition is barred by the applicable statute of limitations, it directed the petitioner to show cause why her action should not be dismissed as untimely (DN 11). The petitioner timely complied with the order (DN 12), and the matter is ripe for review. Because the petition is untimely and because the petitioner is not entitled to equitable tolling of the limitations period, the court will deny the petition and dismiss the action.
I. BACKGROUND AND PROCEDURAL HISTORY
On January 25, 2002, after entering into a plea agreement with the Commonwealth of Kentucky, the petitioner appeared in the McCracken Circuit Court where she entered a plea of guilty to one count of tampering with physical evidence and one count to first degree trafficking in a controlled substance; to wit, cocaine. The circuit court sentenced her to a seven-year term of imprisonment which was to run concurrently with a sentence rendered in another criminal case. The circuit court entered the order and judgment on January 29, 2002 (DN 8, Attach.). The petitioner did not file a direct appeal of the judgment of conviction.
In exchange for the plea, the Commonwealth agreed to the dismissal of one count of giving a false name/address and one count of being a persistent felony offender in the first degree.
On December 20, 2002, the petitioner filed a motion to vacate, set aside, or correct her sentence under Rule 11.42 of the Kentucky Rules of Criminal Procedure ("RCr"). On March 31, 2003, the McCracken Circuit Court denied her motion. Because a copy of that decision was sent to her prior attorney, the McCracken Circuit Court sent her another copy of the order on July 24, 2003. The petitioner did not file a direct appeal of that decision. She notes that her attorney failed to file a motion for leave to file a belated appeal, and she herself filed no such motion. The petitioner filed the instant action on April 26, 2004.
Under the rule announced in Houston v. Lack, 487 U.S. 266, 270-72 (1988), the filing date for a prisoner's document is the actual date on which the prisoner submits his papers to prison authorities for mailing. See, e.g., Burns v. Morton, 134 F.3d 109, 112-13 (3d Cir. 1998). Submission to prison authorities may be evidenced by a certificate of service or by signing a motion under penalty of perjury. See Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999). As the petitioner signed her petition on April 26, 2004, under penalty of perjury, and the date on which she claims that she submitted the petition to the prisoner mail system, the court concludes that she filed the present petition on April 26, 2004.
II. ANALYSIS A. Preliminary Statement
A federal court may not grant habeas corpus relief unless the petitioner has exhausted all available state remedies or demonstrated their inadequacies. 28 U.S.C. § 2254(b); Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002) ("Habeas corpus relief is available only if the applicant first exhausts remedies available in state court."); see also Hannah v. Conley, 49 F.3d 1193 (6th Cir. 1995). Exhaustion requires that a petitioner provide the state courts with the opportunity to correct any constitutional violations by invoking "one full round" of the state's appellate review process. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A district court may deny the petition, however, notwithstanding a petitioner's failure to exhaust all remedies. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). Because the petition is untimely, the court will dismiss the action notwithstanding the petitioner's failure to exhaust her state remedies.B. Statute of Limitations
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the provisions of the AEDPA apply. Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000). The AEDPA sets forth a statute of limitations for state prisoners seeking release from custody. The statute provides as follows:
(d)(1) — A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(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.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(1) and (2).
In the present case, the petitioner's direct appeal of her conviction ended on February 28, 2002, the last day on which she could have filed her appeal with the Kentucky Court of Appeals. Compare Cannon v. Johnson, No. 00-4284, 2001 WL 1299002, at *2 (6th Cir. Aug. 9, 2001) (holding that when a petitioner does not file a direct appeal with the state's highest court, then the statute of limitations begins to run on the day after which he could file such an appeal); see also RCr 12.04(3) ("The time within which an appeal may be taken shall be thirty (30) days after the date of entry of the judgment or order from which it is taken. . . .").
Because the petitioner has one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," then she had until February 28, 2003, to file her petition for writ of habeas corpus in this court unless there was a time-tolling collateral attack pending. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001) (quoting § 2244(d)(2)) (The one-year statute of limitations may be tolled "for that amount of time in which 'a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending.'"). However, "'[a]ny lapse of time before a state application is properly filed will be counted against the one-year limitations period.'" Thompson v. Chandler, No. 02-5787, 2003 WL 343249 (6th Cir. Feb. 12, 2003) (quoting Villegas v. Johnson, 184 F.3d 467, 472-73 (5th Cir. 1999)).
A review of the petition reveals that the petitioner filed a time-tolling motion in state court on December 20, 2002, when she filed a motion to vacate, set aside, or correct her sentence under RCr 11.42. The McCracken Circuit Court denied her motion on March 31, 2003, but she did not receive notice of its decision until July 27, 2003. It is clear that 294 days had lapsed between the time that the petitioner's direct appeal was final and she filed a postconviction collateral attack of that conviction which tolled the limitations period. When the statute of limitations commenced to run again on July 27, 2003, she had 71 days within which to file her federal habeas petition. In other words, her petition was due in this court no later than October 6, 2003.
While the letter from the McCracken Circuit Court is dated July 24, 2003, the court will allow three days for mailing. See Fed.R.Civ.P. 6(e).
Because the petitioner did not file the instant action until April 26, 2004, well after the statute of limitations had run, it is time-barred. Unless the petitioner can demonstrate entitlement to equitable tolling, her petition must be denied and her action dismissed.
C. Equitable Tolling
The crux of the petitioner's equitable tolling argument is that as a layman, she is ignorant of the laws. She also complains that once she filed her Rule 11.42 motion, that her case "was held up" by attorneys from the Department of Public Advocacy between the time that the McCracken Circuit denied her motion and she filed her federal habeas petition. She claims her attorney was going to file a motion for a belated appeal but never did so.
Equitable tolling in this instance is not appropriate. Because § 2254's one-year statute of limitations is not jurisdictional, it is subject to equitable tolling. Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001). Courts should "sparingly" apply the equitable tolling doctrine. Id. at 1009-10. To determine the appropriateness of equitably tolling the statute of limitations, a district court must consider the following five factors: (1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) her diligence in pursuing her rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing her claim. Id. at 1010 (applying the five factor test set forth in Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988)). This list "is not necessarily comprehensive, and not all factors are relevant in all cases." Vroman v. Brigano, 346 F.3d 598, 605 (6th Cir. 2003) (citing Miller v. Collins, 305 F.3d 491, 495 (6th Cir. 2002)). Finally, the petitioner bears the burden of persuading the court that she is entitled to equitable tolling. McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003) (citing Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002)).
Here, the petitioner argues that she was ignorant of the law. Ignorance of the law, however, does not excuse prompt filing. Price v. Jamrog, No. 03-1463, 2003 WL 22435645, *2 (6th Cir. Oct. 23, 2003) (holding that ignorance of the law does not excuse the late filing of a habeas corpus petition) (quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) which held that "ignorance of the law even for an incarcerated pro se petitioner, generally does not excuse prompt filing"); Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) (concluding that, "while pro se litigants may be entitled to some latitude when dealing with sophisticated legal issues . . ., there is no cause for extending this margin to straightforward procedural requirements that a layperson can comprehend as easily as a lawyer.").
Moreover, to the extent that the petitioner blames her attorneys for her untimely petition, her argument lacks merit. The Sixth Circuit has clearly held that an attorney's mistake usually is not a valid basis to equitably toll the AEDPA's one year limitations period. Whalen v. Randle, No. 00-4462, 2002 WL 409113 (6th Cir. Mar. 12, 2002) (citing Kreutzer v. Bowersox, 231 F.3d 460 (8th Cir. 2000); Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999)); see also Cummings v. Yukins, 197 F.Supp.2d 785, 787 (E.D. Mich. 2002) (holding that attorney error which results in the filing of an untimely habeas petition is not a circumstance which justifies tolling of the limitations period).
Additionally, the petitioner failed to establish that she diligently pursued her rights. While she claims that counsel "held up" her case vis-a-vis a state court action, such does not explain how such hindered her ability to file her federal habeas action. Dunlap, 250 F.3d at 1010 ("Petitioner's inability to explain why he did not file his third petition until over two months outside of the statute of limitations, more than fourteen months after his conviction was final, suggests a lack of due diligence."). She certainly points to no external factor that could have prevented her from filing a timely petition and thus fails to establish the requisite diligence.
The fourth factor, whether respondent was prejudiced by the delay in filing, is irrelevant here unless the court finds the existence of another factor that might justify tolling. Vroman, 346 F.3d at 605 (citing Andrews, 851 F.2d at 151)). And, with respect to the final factor, she set forth no reasonable explanation as to why she remained ignorant of the legal requirements for filing this action
In light of the foregoing, the court concludes that equitable tolling is not appropriate in this case. Because the petitioner is not entitled to equitable tolling, the court maintains that the petition is untimely and must be denied.
C. Certificate of Appealability
In the event that the petitioner appeals this decision, the district court must determine whether a certificate of appealability is warranted in this case. 28 U.S.C. § 2253(c)(1)(a); Fed.R.App.P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483 (2000). When a district court denies such a petition on procedural grounds without addressing the merits of the petition, a certificate of appealability should issue only if the petitioner shows "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484.
When a plain procedural bar is present and the court is correct to invoke it to dispose of the matter, a reasonable jurist could not conclude either that the court erred in dismissing the petition or that the petition should be allowed to proceed further. Slack, 529 U.S. at 484. In such a case, no appeal is warranted. Id. The court is satisfied that no jurists of reason could find this procedural ruling to be debatable. Thus, a certificate of appealability in this case must be denied.