FRED ERNEST JONES v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
OCTOBER 27, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002506-MR
FRED ERNEST JONES
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE FARMER H. HELTON, JUDGE
ACTION NO. 99-CR-00072
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND TAYLOR, JUDGES; KNOPF,1 SENIOR JUDGE.
KNOPF, SENIOR JUDGE:
Appellant, Fred Jones, was convicted of
two counts of sodomy in the second degree following a jury trial
in Bell Circuit Court.
imprisonment.
direct appeal.
He received a total of twenty years’
Our Supreme Court affirmed the conviction on
2005-SC-0785-MR.
September 13, 2001.
The opinion was final on
Jones, pro se, filed a motion to vacate the
judgment pursuant to RCr 11.42 on June 21, 2005.
court summarily denied the motion as untimely.
The trial
This appeal
follows.
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
Jones argues that equitable tolling should be applied
to excuse his delay because a prison riot on September 14, 2004,
made the law library inaccessible until January 2005.
RCr 11.42(10) provides:
Any motion under this rule shall be filed
within three years after the judgment
becomes final, unless the motion alleges and
the movant proves either:
(a) that the facts upon which the claim is
predicated
were unknown to the movant and could not
have been ascertained by the exercise of due
diligence; or
(b) that the fundamental constitutional
right
asserted was not established within the
period provided for herein and has been held
to apply retroactively.
In Robertson v. Commonwealth, 177 S.W.3d 789, 792 (Ky. 2005),
our Supreme Court adopted the five factor Dunlap test for
determining whether equitable tolling applies to an otherwise
time-barred RCr 11.42 motion: (1) the petitioner’s lack of
notice of the filing requirement; (2) the petitioner’s lack of
constructive knowledge of the filing requirement; (3) diligence
in pursuing one’s rights; (4) absence of prejudice to the
respondent; (5) the petitioner’s reasonableness in remaining
ignorant of the legal requirement for filing his claim.
(Citing
Dunlap v. United States, 250 F.3d 1001 (6th Cir.1988)).
As
factors one, two, and five are essentially incorporated into RCr
-2-
11.42(10)(a), the primary factors to be considered are factors
three (diligence) and four (prejudice).
Id.
We find that Jones is not entitled to equitable tolling
based upon the application of the Dunlap test to the facts of
this case.
We cannot conclude that Jones has satisfied the
diligence requirement.
Jones acknowledged the original filing
deadline and that his motion was untimely.
Additionally, the
alleged prison riot that prevented him for accessing the law
library did not occur until September 14, 2004, the date of the
filing deadline for his motion.
He does not even allege that
his motion was ready to be mailed that day, only that it was
“well underway.”
Additionally, the motion was filed on June 21,
2005, six months after Jones stated that the library had
reopened.
The trial court correctly denied the motion as
untimely.
Accordingly, the order of the Bell Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Fred Ernest Jones, pro se
Sandy Hook, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
