Fleming v. Bigelow, No. 2:2011cv00310 - Document 49 (D. Utah 2013)
Court Description: MEMORANDUM DECISION granting 41 Motion to Dismiss. This Petition is denied because it fails to state a claim upon which habeas-corpus relief may be granted, and, alternatively, because it is barred by the applicable period of limitation. Case Closed. Signed by Judge Bruce S. Jenkins on 3/25/13. (jmr)
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IN THE UNITED STATES DISTRICT COURTr":"; ::' :\ FOR THE DISTRICT OF UTAHU.S. [;:~: ';;:'C'( COUR 1 CARL STANLEY FLEMING, MEMORANDUM Z~t~1f~lJk ; d~JR GRANTING M0TrJ~¥[\~ 1{.ri$WSS Pet ioner, Case No. v. District Judge Bruce Jenkins ALFRED BIGELOW, Respondent. Petitioner, Carl Stanley Fleming, an inmate at Utah State son, requests habeas-corpus reI f.l Respondent moves to dismiss the Petition, arguing that it was applicable period of limitation. led past the The Court agrees. BACKGROUND Petitioner was convicted one count each of aggravated robbery and aggravated kidnaping, both which he was sentenced, respect life and ten-years-to-life. rst-degree felonies, , to terms of five -to Petitioner failed to successfully appeal his convictions, they became final on May 3, 2006--the deadline Petitioner mis writ of certiora pet for fil a petit with the United States Supreme Court. ion was not filed until April 19, 2011. The Second Amended Petition habeas relief: ISee 28 U.S.C.S. § 2254 (2013). ses a single ground for This Petitioner's ghts for access to the courts were violated when he was not allowed to adequately address all of his issues in his rst post-conviction petition, because his legal material, including his first post conviction rel f petition, transcripts and work product material were con seated and lost by the Department of Corrections. FEDERAL CONSTITUTIONAL VIOLATION The Court notes sua sponte that the ground for relief raised by Petitioner is not proper in this habeas case. court shall entertain an application "[A] district a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws . . of the United States."2 Here, Petitioner does not attack as unconstitutional or illegal the substance of the judgment under which he was convicted or his sentencing. If the Court were to grant relief on the ground stated, it would not necessarily void his conviction or sentencing, which is the hallmark of a habeas-corpus remedy. Legal-access claims are generally brought in civil-rights complaints under § 1983. 3 In this situation, Petitioner has already brought this claim (regarding the dismissal of his first state post-conviction pet ion as untimely because of the loss or confiscation by prison personnel of legal materials including his id. § 2254(a). 3 42 id. § 1983. 2 criminal-trial transcripts) in a civil-rights complaint in this Court, on which he did not prevail: [T]he dismissal.of Plaintiff's state court Petition does not support a legal access claim. [T]he Petition was not dismissed as untimely or on any other technical grounds; instead, each of Plaintiff's ims were addressed and dismissed by the state court on the merits. Thus, the dismissal of the Petition does not show that Plaintiff was significantly hindered from pursuing a non frivolous "habeas corpus or civil rights action[] regarding [his] current confinement. " Carper v. Deland, 54 F. 3d 613, 616 (10th Cir. 1995). This determination precludes Plaintiff from pursuing a legal access claim based on the dismissal of s state court Petition. 4 Based on Petitioner's failure to state a claim upon which habeas-corpus relief may be granted, then, denied. 5 issue in s Pet And, Petitioner has already unsuccess s proper vehicle--a civil- ion is ly raised this ghts complaint -so the issue appears to have run its futile course. PERIOD OF LIMITATION As an alternative basis for dismissing this Pet Court ews its untimeliness. ion, the The statute setting forth the period of limitation for federal habeas petitions reads pertinent part: A I-year period of limitation shall apply to an application for a writ of habeas corpus by 4Fleming v. Clark, No. 2:09-CV-I038 OAK, slip op. at 10 (D. Utah 21, 2012). R. Civ. P. 12 (b) (6). 3 a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of. . the date on which the judgment became final by the conclusion of direct review or the expiration of the time seeking such review. 6 By statute, the one-year period of limitation is tolled for "[t] 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.,,7 Meanwhile, equitable tolling is also available but "'only in rare and exceptional circumstances. 1 .. 8 1. STATUTORY TOLLING At separate times, Petitioner filed two different petitions for post-conviction relief in state court. After 264 days of the 365-day federal period of limitation had ticked away, on January 22, 2007, Petitioner filed his petition. rst state post-conviction This petition was denied and taken to the Utah Court of Appeals, which af rmed the convictions on November 6, 2008. Petitioner did not file a petition for writ of certiorari to the Utah Supreme Court. 9 Therefore, the period of limitation began running again on December 8, 2008. U.S.C.S. § 2244 (d) (1) 6 28 . § (2013) . 2244 (d) (2). 8Stanley v. McKune, No. 05-3100, 2005 U.S. App. LEXIS 9872, at *4 (10th Cir. May 23, 2005) (quoting Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) ) . 9As an aside, the Court notes here that Petitioner did not exhaust his claim and is now procedurally barred from pursuing it further. However, the Court need not on yet a third basis for denying this Petition. 4 After 23 more days (287 total) had 'passed toward the federal period of limitation, on December 31, 2008, Petitioner filed his second state post-conviction ition. This was denied and then affirmed through the appeals process, which ended on October 8, 2010, when the period of limitation began running again. After another 78 days passed, on December 27, 2010, the federal period of limitation expired. By the time Petitioner filed this federal petition on April 19, 2011, he had exceeded the period of limitation by almost four months. 2. EQUITABLE TOLLING Petitioner excuses his failure to timely file his petition by asserting he lacked access to a law library and legal knowledge, and the prison-contract-attorney system is inadequate and gave him misinformation about habeas filings. asserts actual innocence. He also Based on these circumstances, he argues that the Court should apply equitable tolling to rescue him from the period "Equitable t limitation's operation. ling will not be lable most cases, as extensions of time will only be granted if 'extraordinary circumstances' beyond a prisoner's control make it impossible to file a ition on time."lc Those situations include times "'when a prisoner is actually innocent'" 1997) lOCalderon v. United States Dist.Court, (citation omitted). 5 or "'when an adversary's 128 F. 3d 1283, 1288 (9th Cir. conduct--or other uncontrollable circumstances--prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but statutory period. ,,,11 les a fective pleading during the And, Petitioner "has the burden of demonstrating that equitable tolling should apply." A. Aga UNCONTROLLABLE CIRCUMSTANCES the backdrop of these general principles, the Court considers Petitioner's specific arguments. First, Pet ioner asserts that his lateness should be overlooked because he lacked a law library, 1 1 knowledge, and had only limited help and misinformation from prison contract attorneys. a prisoner "had inadequate support equitable tolling. 13 library facilit The argument that s" does not Further, it is well settled that "'ignorance of the law, even for an incarcerated pro se pet ioner, generally does not excuse prompt filing.' 1114 Finally, simply put, "' [t]here is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a lIStanley, 2005 U.S. App. LEXIS 9872, at *4 (quoting Gibson, 232 F.3d at 808 (citation omitted)) . 12Lovato v. Suthers, (10th Cir. July 15, 2002) No. 02-1132, 2002 U.S. App. LEXIS 14371, at *5 (unpublished). 13McCarley v. Ward, Nos. 04-7114, 04-7134, 2005 U.S. App. LEXIS 14335, at *3-4 (10th Cir. 15, 2005); see also Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (nIt not enough to say that the . . . facility lacked all relevant statutes and case law or that the procedure to request specific materials was inadequate."). 14Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) omitted) . 6 (citation petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. contention thwarted ,,,15 It follows that Petitioner's the prison contract attorneys' misinformation s habeas filings does not toll the period of limitation. 16 During the running of the federal beyond, Petitioner took no steps hims his federal ims." riod of limitation and f to "diligently pursue In fact, all Petitioner's excuses are undercut by the fact that he was able to file and pursue in the appellate process two state post-conviction time of his conviction and the time he fil petition. it ions between the this In sum, none of the circumstances rais ral habeas by Pet ioner rendered it beyond his control to timely file his petition here. B. ACTUAL INNOCENCE lly, the Court addresses Petitioner's contention that the period of limitation should innocent. new, tolled because he is actually "[T]o claim actual innocence a petitioner must present iable evidence that was not presented at trial. evidence typically consists of 'exculpatory scienti Such evidence, 15Thomas v. Gibson, 218 F.3d 1213, 1222 (10th Cir. 2000) (quot Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citations omitted)); see also 28 U.S.C.S. § 2254(i) (2013) ("The ineffectiveness or incompetence of counsel Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding under section 2254. U ) . Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) ("An attorney's miscalculation of the limitations period or mistake is not a basis for equitable ."). 7 trustworthy eyewitness accounts, or evidence. ,,,17 tical physical Further, this evidence must "a demonstrate [ the pet rmatively ioner'sJ innocence," not just "undermine the finding of guilt against him."IB After presenting such evidence, a petitioner must then "show that evidence, guil ty. ,"19 light of the new 'no reasonable juror would have found Such evidence is so very rare, though defendant f that "' in virtually every case, the allegation of actual innocence has been summarily ected. ' ,,20 Petitioner's mere rehashing of the evidence and alleged violations of his civil rights do nothing to convince this Court that the exception applies. ndeed, the kernel of the Court's analysis regarding actual innocence is not whether Petitioner urgently believes there were errors--or whether there were indeed errors--in the state proceedings, but whether Petitioner is factually innocent. This factual innocence must also be supported with new evidence, which Petit 17Rose v. Newton (10th Cir. . 5, 2006) 324 (1995)), cert. Cir. 1999) r has not provided. No. 05-6245, 2006 U.S. . LEXIS 22713, at *4-5 (unpublished) (quoting Schlup v. Delo, 513 U.S. 298, 127 S. Ct. 2039 (2007). 18Green v. Kansas, No. 06-3118, 2006 U.S. App. LEXIS 20046, at *8 (10th . 3, 2006) (quoting Phillips v. , 182 F.3d 769, 774 (lOth Cir. (internal citations & quotations omitted)). 19 See Rose, 2006 U.S. App. LEXIS 22713, at *5 at 329). 2oCalderon v. Thompson, (quoting Schlup, 513 U.S. 523 U.S. 538, 559 (1998) 8 (citations omitted). C. CONCLUSION Accordingly, the current petition before the Court was filed past one-year period of limitation. statutory exceptions nor equitable t And, it appears neither ling, including Petitioner's allegation of actual innocence, apply to save r from t Petit period of limitation's operation. ORDER IT IS ORDERED that Respondent's motion to dismiss is GRANTED. 21 This Petition is denied because it fails to state a claim upon which habeas-corpus reI f may be granted, and, alternatively, because it is barred by the applicable period of limitation. DATED this day of March, 2013. BY THE COURT: 21 (See Docket Entry # 41.) 9
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