Burks v. Kelley, No. 16-3718 (8th Cir. 2018)
Annotate this CaseThe Eighth Circuit vacated the district court's order determining that petitioner's one-year statute of limitations for his habeas petition should be equitably tolled. As a preliminary matter, the court held that the district court's decision was final and appealable. On the merits, the court held that petitioner was not entitled to equitable tolling because he did not demonstrate reasonable diligence during the limitations period. The court reasoned that, even assuming that discussion at the hearing in April 2008 might have led petitioner to believe that an appellate court would appoint counsel for him, a reasonably diligent prisoner should have done something thereafter to protect his rights.
Court Description: Colloton, Author, with Benton and Kelly, Circuit Judges] Prisoner case - Habeas. The district court erred in determining petitioner's Section 2254 petition was timely because the time for filing the petition was equitably tolled; district court's order requiring the state, within 120 days to appoint petitioner appellate counsel, accept his request for a state court appeal and consider the appeal timely filed or vacate this convictions and re-try him was final decision for purposes of appeal to this court; the time for filing this habeas was not equitably tolled because petitioner failed to act with reasonable diligence to protect his rights and determine the status of his case.
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