Lambert v. Perry, No. 1:2016cv02783 - Document 24 (W.D. Tenn. 2018)
Court Description: ORDER GRANTING 23 MOTION TO DISMISS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Chief Judge S. Thomas Anderson on 6/13/18. (mbm)
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F. App’x--, 2018 WL 2329736, at *2 (6th Cir. May 23, 2018) (declining to decide whether the petitioner’s “inability to read and understand English, coupled with the denial of access to translation or legal assistance, . . . constitute[d] an extraordinary circumstance,” where the petitioner failed to establish his diligence in seeking assistance). Petitioner’s allegations do not suggest that he was denied access to persons who could help him with reading and writing tasks, or even legal research. Although the legal aide in the protective custody unit must serve 256 inmates, Petitioner has not alleged that he was unable to meet with 1 Petitioner does not allege that he has no ability to read or write, but that he has “great difficulty reading and understanding anything in written form.” (ECF No. 22 at 11.) At his postconviction hearing, he testified that he has a sixth-grade education, is “somewhat illiterate,” and “can read but . . . just can’t write that well.” (ECF No. 14-9 at 56.) 7 the aide or ask the aide questions. He only alleges generally that the aide “does not have the time or resources to assist all the inmates effectively.” (ECF No. 22 at 12.) He also admits that a “law library aid[e]” was available “to assist him” with the “legal computer in the protective custody unit.” (Id.) Petitioner further admits that he was able to secure the help of an “inmate legal aid[e] in the protective custody unit [to] assist[] [him] in filing his initial habeas petition.” (Id. at 15.) He does not state that the assistance was unavailable at an earlier time, just that it was “difficult to obtain.” (Id. at 13.) Notably, he does not explain why he was able to secure that assistance after the limitations period expired, but not before. 2 Petitioner also does not describe reasonable diligence in seeking assistance during the limitations period and during the seven months after the limitations period expired. 3 He states that he “spoke to his case manager and wrote to the legal library for help” when the legal aide who was helping him with his application for permission to appeal to the Tennessee Supreme Court was transferred to another facility. (ECF No. 22 at 14-15). He does not, however, describe similar efforts regarding the preparation of his federal Petition. He also does not state how many times he formally or informally asked for assistance with his Petition and what responses he received. Lambert also complains that “[i]nmate legal aid[e]s from the main compound came to consult with [him] on two occasions but never followed up with any of the help they said that they 2 To the extent Lambert complains that the prison legal aides have no “legal training,” he is in no worse position than most inmates. A prisoner is not entitled to the assistance of an attorney and his “lack of legal training . . . does not give a court reason to toll the statute of limitations.” Cobas, 306 F.3d at 444. 3 Petitioner does not suggest that he did not “understand the need for assistance.” Stiltner v. Hart, 657 F. App’x 513, 521 (6th Cir. 2016). To the contrary, he asserts generally that he diligently sought help. 8 would provide.” (Id. at 15.) But he does not identify when those occasions occurred and if they related to the preparation of his federal Petition. See Levy, 2018 WL 2329736, at *3 (“[N]one of [petitioner’s] asserted acts of diligence pertained to federal habeas relief in particular.”) He also does not describe what he did to secure assistance when he realized that the aides were not following up with him. With regard to assistance by persons outside of the prison, Lambert alleges that he recruited family members to help him secure copies of transcripts and other documents. He does not, however, state that he asked those family members for help in determining how much time he had to file his Petition or for assistance in preparing it. In short, Petitioner does not allege that he was persistent in asking others for help. See e.g., Jones, 689 F.3d at 627 (finding that partially illiterate petitioner was diligent in seeking help with the preparation of his federal habeas petition where he “constantly question[ed] others . . . on how to challenge his convictions”). At best, Lambert’s own allegations suggest that he engaged in minimal efforts to pursue his federal habeas rights. The Court therefore finds that Petitioner has not shown that, despite reasonable diligence, his partial illiteracy and limited access to assistance caused a seven-month delay in filing his Petition. Lack of Legal Paperwork Petitioner alleges that “[i]n 2012 his legal paperwork was taken by other inmates” because prisoners, like him, who have been convicted of child rape and incest “are targeted for extortion as well as . . . harass[ment].” (ECF No. 22 at 13.) He also alleges that his family members have tried to secure copies of the trial transcript and other documents from the state court clerk, but they could not afford to pay the copying cost. His efforts to obtain the state court record without 9 payment of fees were unsuccessful. (Id. at 13-14.) He supports his allegations with documentary evidence. (ECF No. 22-1 at 4-8, 12, 16-25.) Lambert also alleges that he was unable to secure a copy of his file from his post-conviction counsel. In support, he submits copies of letters he and his post-conviction counsel exchanged following the TCCA’s denial of post-conviction relief. In a letter dated October 30, 2015, he requested that counsel send him “any and all Transcripts of Evidence, motions, briefs, court orders or opinions, Discovery Packet, and any exculpatory evidence, etc., that you may have produced and/or may have in your possession” so that he could prepare an application for permission to appeal to the Tennessee Supreme Court. (ECF No. 22-1 at 27.) By letter dated November 11, 2015, counsel promised that she would mail a copy of the voluminous file within ten days. (ECF No. 22-1 at 14.) Peitioner claims that counsel never sent him the requested documents. Lambert has failed to show that a lack of legal paperwork prevented him from timely filing his Petition. Even assuming that inmates stole his legal papers in 2012, Petitioner admits that, in 2015, his post-conviction counsel sent him some records. (ECF No. 22 at 14.) As to the ones that allegedly were not sent, he does not identify what they were and why they were necessary to his preparation of the Petition. Petitioner likewise does not specify which of the state court records that his family members tried to obtain for him were indispensable, and why he believes they were so. In fact, Petitioner continues to complain that he “still does not have all of his legal paperwork,” although he was able to prepare and file his Petition, as well as his Amended Petition, without those unidentified papers. See e.g., Hall, 662 F.3d at 751 (holding petitioner’s inability to secure transcript was not an extraordinary circumstance since he “ultimately filed his petition without ever having received the transcript”). 10 At bottom, Petitioner does “not explain satisfactorily how the lack of his legal materials prevented him from timely filing his habeas corpus petition.” Bowling v. Lee, No. 2:17-cv-35RLJ-MCLC, 2018 WL 1598789, at *5 (E.D. Tenn. Mar. 30, 2018) (denying petitioner’s request for equitable tolling). For all of these reasons, the Court finds that Petitioner has not carried his burden to show that, despite reasonable diligence, extraordinary circumstances caused him to file the Petition seven months after the limitations period expired. See e.g., Allen v. Yukins, 366 F.3d 396, 404 (6th Cir. 2004) (where petition was filed seven months late, holding that “the length of [the] delay does not support the application of equitable tolling; in fact, the length of [the] delay actually suggests that equitable tolling is not appropriate in this case.”); see also Jones, 689 F.3d at 627 (holding equitable tolling applied where partially illiterate inmate who experienced numerous transfers and serious medical conditions “missed the one-year deadline by less than three months”); Solomon, 467 F.3d at 933-34 (holding equitable tolling applied where petitioner exercised reasonable diligence by filing his petition one month after he was returned to his regular place of incarceration). 4. Actual Innocence Petitioner argues that he can overcome the statute of limitations because he is actually innocent of the crimes for which he was convicted. In support, he alleges that certain state court documents or evidence will demonstrate his innocence, but that he has been unable to secure copies of them. As noted, a petitioner asserting a gateway claim of actual innocence must show that, in light of new evidence, “it is more likely than not that no reasonable juror would have convicted” him. McQuiggin, 569 U.S. at 399 (internal quotation marks omitted). Petitioner, here, has not 11 identified any such evidence. In addition, his allegation that he has not received documents that would show his actual innocence does not help him, as he has not identified the documents, described what he believes they will demonstrate, or even alleged that they represent “new” evidence. Accordingly, Petitioner has failed to establish a gateway claim of actual innocence. For all of these reasons, the Court finds that the Petition was not timely filed and no reasons exist to excuse the late filing. The Amended Petition is therefore DISMISSED. APPEAL ISSUES A § 2254 petitioner may not proceed on appeal unless a district or circuit judge issues a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA may issue only if the petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2)-(3). A “substantial showing” is made when the petitioner demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “If the petition was denied on procedural grounds, the petitioner must show, ‘at least, 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.’” Dufresne v. Palmer, 876 F.3d 248, 252-53 (6th Cir. 2017) (quoting Slack, 529 U.S. at 484). 12 In this case, reasonable jurists would not debate the correctness of the Court’s decision to dismiss the Amended Petition. Because any appeal by Petitioner does not deserve attention, the Court DENIES a certificate of appealability. Pursuant to Federal Rule of Appellate Procedure 24(a), a party seeking pauper status on appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R. App. P. 24(a). However, Rule 24(a) also provides that if the district court certifies that an appeal would not be taken in good faith, the prisoner must file his motion to proceed in forma pauperis in the appellate court. Id. In this case, for the same reasons it denies a COA, the Court CERTIFIES, pursuant to Rule 24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in forma pauperis is therefore DENIED. IT IS SO ORDERED. s/ S. Thomas Anderson S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE Date: June 13, 2018. 13
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