LOUIS ROBERTSON V COMMONWEALTH OF KENTUCKY
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RENDERED : NOVEMBER 23, 2005
TO BE PUBLISHED
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2003-SC-0948-DG
LOUIS ROBERTSON
V
ON REVIEW FROM COURT OF APPEALS
2002-CA-896
NELSON CIRCUIT COURT NO . 96-CR-4
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING AND REMANDING
In 1997, Appellant, Louis Robertson, was convicted by a Nelson Circuit Court
jury of five counts of sodomy in the first degree and five counts of sexual abuse in the
first degree and sentenced to 100 years in prison . We affirmed his convictions and
sentences by an opinion rendered on February 11, 1999.
Appellant claims that on February 5, 2002, while incarcerated in the Eastern
Kentucky Correctional Complex (EKCC), he delivered a properly prepared and
addressed pro se RCr 11 .42 motion to vacate, set aside or correct his sentence, along
with other related motions, to the EKCC legal mail clerk for mailing . In support of this
claim, he has filed a copy of what purports to be the EKCC "Legal Mail Log Record" for
that date, which reflects two items of mail received from Appellant, one addressed to the
Commonwealth's Attorney for the Tenth Judicial Circuit (which includes the Nelson
Circuit Court) and the other addressed to the Nelson Circuit Court clerk. However, the
RCr 11 .42 motion was not "filed" in the office of the Nelson Circuit Court clerk until
February 25, 2002, twenty days after Appellant claims to have delivered it to the prison
legal mail clerk and fourteen days after the expiration of the three-year period of
limitation for filing such a motion . RCr 11 .42(10). The Nelson Circuit Court dismissed
the motion as untimely filed, and the Court of Appeals affirmed . We now reverse and
remand to the Nelson Circuit Court for an evidentiary hearing to determine whether the
three-year period of limitation was equitably tolled in this case.
Criminal Rule (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.
(Emphasis added .)
Both the Nelson Circuit Court and the Court of Appeals correctly concluded that
the "shall be filed" requirement was mandatory and that neither had authority to sua
sponte adopt a so-called "prison mailbox rule ." In Houston v. Lack, 487 U .S . 266, 108
S .Ct. 2379, 101 L .Ed.2d 245 (1988), the United States Supreme Court adopted such a
rule for the filing of a notice of appeal by a pro se prisoner . In that case, the prisoner
had deposited a notice of appeal with prison authorities for mailing to the court on the
twenty-seventh day after entry of judgment denying his petition for a writ of habeas
corpus; but the clerk did not receive and file the notice until the thirty-first day, one day
after the period of limitation had expired . Fed . R. App. P . 4(a)(1). The Court held that
the notice of appeal was "filed" when the prisoner deposited it with prison authorities for
mailing . Houston, 487 U.S . at 270-71, 108 S .Ct. at 2382 (noting that "[s]uch prisoners
cannot take the steps other litigants can take to monitor the processing of their notices
of appeal and to ensure that the court clerk receives and stamps their notices of appeal
before the 30-day deadline"). Appellant urges us to adopt the Houston "prison mailbox
rule" for the filing of pleadings by pro se prisoners in Kentucky courts .
Appellant's request is not meritless in this case, especially since RCr 11 .42(10)
does not specify how or where the motion "shall be filed" (though RCr 11 .42(1) provides
that a prisoner may "proceed directly by motion in the court that imposed the
sentence") . Other rules, however, do specify where pleadings must be filed, e .g ., CR
73.01(2) ("appeals shall be taken to the next higher court by filing a notice of appeal in
the court from which the appeal is taken"). We are reluctant to carte blanche amend our
rules without following the formal procedures established for such amendments. CR 87.
Furthermore, a blanket adoption of a "prison mailbox rule" could be construed as an
attempt to also amend, sua sponte , statutes of limitation adopted by the General
Assembly. See , etc . , KRS 13B .140(1) ("A party shall institute an appeal by filing a
petition in the Circuit Court of venue, as provided in the agency's enabling statutes,
within thirty (30) days . . . ."); KRS 24A.120(2) ("Such adversary proceeding shall be
filed in' Circuit Court . . . ."); KRS 61 .120(2) ("Provided, however, that the notice of
appeal and order appealed from shall be filed with the clerk of the Court of Appeals
within thirty (30) days . . . ."); KRS 351 .194(8) ("An appeal of an order of the
commission shall be filed in the Franklin Circuit Court within thirty (30) days . . . ...); KRS
419 .130(1) ("Any party to a hearing on a writ [of habeas corpus] may appeal to the
Court of Appeals by filing with the clerk of the court, within thirty (30) days . . . .").
Perceiving the possibility of unforeseen mischief fostered by otherwise good
intentions, we decline to adopt the fiction that "filing" means delivery to prison
authorities . As suggested by the dissenters in Houston , we might next be called upon
to determine whether a person living abroad can "file" a necessary pleading by
delivering it to a United States consul, or whether a soldier in a war zone can do so by
delivering it to his or her commanding officer. Houston , 487 U .S. at 277, 108 S .Ct. at
2385 (Scalia, J., dissenting) .
For similar reasons, the Supreme Court of Wisconsin declined to adopt a "prison
mailbox rule ." State ex rel. Nichols v. Litscher, 635 N .W.2d 292, 295 (Wis . 2001) ("We
decline to interpret the term 'file' in § 808.10 and § 809 .62(1) to mean 'deposit in a
prison mailbox."'). However, like the majority in Houston , that court recognized that pro
se prisoners are without options when it comes to "filing" petitions .
When pro se prisoners seek to file petitions, their control over the filing
process is circumscribed by prison rules and procedures . Pro se
prisoners' choice in method of filing is no choice at all. They must rely on
the "vagaries of the mail." Other petitioners may personally deliver their
petitions to the clerk of court's office, even at the last possible moment .
We discern no convincing reason why pro se prisoners who act more
promptly and otherwise comply with filing requirements should be placed
at a disadvantage .
Id . at 299. Nichols held that if the pro se petitioner has otherwise complied with all of
the requisites for filing a petition, the deadline for such filing is tolled on the date the
prisoner delivers the correctly addressed petition to the proper prison authorities for
mailing. Id . at 298-99 .
The Nichols remedy is similar to the equitable tolling remedy fashioned by most
federal circuit courts of appeal to grant relief to deserving pro se prisoners from the one-
year period of limitation imposed by 28 U.S .C . § 2255' for filing a petition for a writ of
habeas corpus. Similar to RCr 11 .42(10), that section provides in pertinent part :
A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of (1) the date on which the judgment of conviction becomes final ;
(2) the date on which the impediment to making a motion created by
government action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental action ;
(3) the date on which the right asserted was initially recognized by the
Supreme Court. . . . and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U .S .C. § 2255 .
In Dunlap v. United States , 250 F.3d 1001 (6th Cir. 2001), the United States
Court of Appeals for the Sixth Circuit adopted for equitable tolling purposes in habeas
cases the same five-factor test it had approved for employment discrimination cases in
Andrews v. Orr, 851 F .2d 146, 151 (6th Cir. 1988) : (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 ; and (5) the petitioner's reasonableness in remaining ignorant of the legal
requirement for filing his claim . Dunlap, 250 F.3d at 1008-09 .
Considering the similarities between 28 U .S .C . § 2255 and RCr 11 .42(10), and
the fact that the denial of a motion under RCr 11 .42 often results in the filing of a
habeas petition within the jurisdiction of the Sixth Circuit, we now adopt the Dunlap test
for determining whether equitable tolling is applicable to an otherwise limitation-barred
RCr 11 .42 motion. Dunla factors one, two, and five are essentially incorporated within
' This section was enacted as part of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), Pub. L. 104-132, Title I, § 105, 110 Stat. 1220 (1996).
RCr 11 .42(10)(a) . Thus, the primary considerations adopted from Dunlap are factors
three (diligence) and four (prejudice) .
Appellant does not claim ignorance of the legal requirements for filing his RCr
11 .42 motion . Thus, Dunlap factors one, two, and five and RCr 11 .42(10)(a) do not
apply to his late motion. If, indeed, Appellant delivered a properly prepared and
properly addressed motion to the appropriate prison authorities prior to the expiration of
the three-year limitation period, then he did "all that could reasonably be expected to get
the [motion] to its destination within the required [time limit]," Fallen v. United States ,
378 U .S . 139, 144, 84 S.Ct. 1689, 1692-93, 12 L.Ed .2d 760 (1964), superseded by rule
amendment as stated in Carlisle v. United States , 517 U.S . 416, 424, 116 S.Ct . 1460,
1465, 134 L.Ed .2d 613 (1996), and, thus, satisfied Dunla factor three (diligence) .
Dunlap factor four (prejudice) ordinarily would not militate against equitable tolling under
these circumstances, because there would seem to be no more prejudice to the
Commonwealth to permit Appellant to proceed with his motion than if the motion had
actually been received and filed by the Nelson Circuit Clerk on or before February 11,
2002 . However, the appropriate forum for finding facts militating for or against equitable
tolling is the circuit court ; and the Nelson Circuit Court has never held an evidentiary
hearing on the issue of whether Appellant actually delivered a properly prepared and
addressed RCr 11 .42 motion to the appropriate EKCC prison authorities for mailing
prior to the expiration of the limitation period .
Accordingly, we reverse the Court of Appeals and remand this case to the
Nelson Circuit Court for an evidentiary hearing on the issue of equitable tolling and any
other necessary proceedings not inconsistent with the content of this opinion .
Lambert, C .J . ; Graves, and Johnstone, JJ., concur . Scott, J ., concurs in part and
dissents in part by separate opinion . Roach, J ., dissents by separate opinion .
Wintersheimer, J., dissents by separate opinion .
COUNSEL FOR APPELLANT :
Christopher N . Lasch
Goodwin & Lasch, PSC
6008 Brownsboro Park Blvd .
Louisville, KY 40207
COUNSEL FOR APPELLEE :
Gregory D . Stumbo
Attorney General
Room 118, State Capitol
Frankfort, KY 40601
Todd D. Ferguson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : NOVEMBER 23, 2005
TO BE PUBLISHED
Suprrmr Caurf of ~rnfurhU
2003-SC-000948-D
LOUIS ROBERTSON
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2002-CA-896
NELSON CIRCUIT COURT NO. 96-CR-4
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE SCOTT
CONCURRING IN PART AND DISSENTING IN PART
I concur in that this court has at least adopted "an equitable tolling" rule,
which may provide relief to prisoners when they have done "all that could
reasonably be expected to get the [motion] to its destination within the required
[time limit] ."
I dissent because the majority has timidly strolled off into the night in the
joyful company of a dissenting position in Houston v . Lack , 487 U .S. 266, 108
S.Ct . 2379, 101 L .Ed.2d 245 (1988) - the majority in which, adopted what is now
called the "prison mailbox rule," a more practical rule that simply relies on the
"prison mail logs" to determine if a court document was given to the prison
authorities prior to the limitations deadline .
The Supreme Court [has] held that [a] notice of appeal was timely filed `at
the time petitioner delivered it to the prison authorities for forwarding to the court
clerk," Houston v. Lack, 487 U .S . 266, 108 S .Ct. 2379, 101 L.Ed.2d 245 (1988),
in part because "the moment at which pro se prisoners necessarily lose control
over and contact with their notices of appeal is at delivery to prison authorities,
not receipt by the clerk." Id. at 275, 108 S.Ct. at 2384. The Ninth Circuit has held
that this "mailbox rule" also applies in determining when an application for state
postconviction review is "properly filed" for purposes of tolling the AEDPA's
limitations period . Anthony v. Cambra , 236 F.3d 568
(9th
Cir. 2000) ; Staffold v.
Newland , 224 F .3d 1087 (9th Cir. 2000) ; 28 U .S .C . § 2244(d)(2) . The Sixth
Circuit has recently determined that the Houston v. Lack "mailbox rule" applies
also to civil complaints filed in federal district court by pro se prisoners . Richard
v. Ray, 290 F .3d 810 (6th Cir. 2002) .
It appears that the majority of state courts that have considered the issue
have permitted pleadings of pro se prisoners to be deemed filed at the time they
V
are deposited in the prison mail system . See Massaline v. Williams , 554 S .E .2d
720, 722 (Ga. 2001) (citing Washington v. Hurt , 27 P .3d 1276, 1278 (Wash .
2001) ; Sykes v. Mississippi , 757 So.2d 997, 1000-01 (Miss. 2000) ; State ex rel .
Egana v. Louisiana , 771 So.2d 638, 2000 La. LEXIS 3022, *1 .2 (La .Sept. 22,
2000) ;
Taylor
v.
McKune,
962
P .2d
566,
569-70 - (Kan.
App.
1998) ;
Commonwealth v . Jones, 700 A.2d 423, 426 (Pa . 1997) ; Munson v. State , 917
P .2d 796, 799-800 (Idaho 1996) ; Mayer v. Arizona , 908 P .2d 56,57 (Ariz. Ct.
App. 1995) ; Ex parte Williams , 651 So .2d 569, 571 (Ala. 1992) ; In re Jordan , 840
P2d 983, 985 (Cal . 1992) ; Woody v. Oklahoma ex rel . Dept. of Corrections ,
833P .2d 257, 259-60 (Okla . 1992) ; Haagg, v. Florida , 591 So .2d 614, 617 (Fla.
1992): Kellogg
v.
Journal
Communications ,
835
P .2d
12,
13-14
(Nev.
1992);Commonwealth v. Hartsgrove , 553 N .E.2d 1299, 1301-02 (Mass . 1990) ;
See also Setala v. J .C . Penney Company, 40 P .3d 886 (Haw. 2002); Hickey v.
Oregon State Penitentiary , 874 P2d 102 (1994) (applying Oregon law) ; McGillv
.
India Dept. of Correction , 636 N.E .2d 199 (Ind. App. 1994) ; See also State v.
Parker, 936 P .2d 1118, 1120-21 (Utah App. 1997) (noting, "We understand why
many of our sister states have decided to adopt Houston's interpretation of the
federal rules to their own state rules of procedure," but leaving the question for
the state supreme court to decide) .
At least one state has amended its procedural rules to create a "prison
mailbox rule ." The Tennessee Supreme Court amended Tenn . R . Civ. P. 5 .06 on
July 1, 1997 to liberalize the filing rules for incarcerated pro se prisoners . From
and after that date, papers prepared by or filed on behalf of an incarcerated pro
se prisoner are deemed to have been filed with the trial court when they are
"delivered to the appropriate individual at the correctional facility ."
In defense of adopting the "prison mailbox rule" at this time, I would note
that we have a finite number of trial judges and time to handle an ever increasing
docket of cases - and by depending on "equitable tolling" to solve the problem,
we have created another hearing with multiple briefs and evidentiary questions
prior to the trial court's thoughtful review and ruling .
Adopting the "prison mailbox rule" would have been so much simpler for
everyone.
RENDERED : NOVEMBER 23, 2005
TO BE PUBLISHED
,Sixpxettr Caurf of ~rttfurkg
2003-SC-00948-DG
LOUIS ROBERTSON
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2002-CA-896
NELSON CIRCUIT COURT NO . 96-CR-4
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE ROACH
I concur with the majority's conclusion that RCr 11 .42(10) is subject to equitable
tolling . However, the majority, without any explanation, has adopted the five-factor test
for equitable tolling announced in Dunlap v. United States , 250 F.3d 1001 (6th Cir.
2001). In doing so, the majority has rejected the "extraordinary circumstances" test
adopted by every federal court of appeals except for the Sixth Circuit . I believe the
majority's approach is mistaken, and I dissent from that portion of the majority opinion .
Every case I have read in this area indicates that, at the very least, equitable
tolling should be available only in rare cases. This principle is curiously absent from the
majority opinion, although even the Sixth Circuit, whose test the majority has
indiscriminately adopted, recognizes it. See, e.g. , Dunla
250 F.3d at 1008 ("(W]e
share in Respondent's concern that equitable tolling be applied sparingly . . . .").
In particular, l think equitable tolling should only be available when a movant can
demonstrate that the untimeliness of his filing was "because of extraordinary
circumstances that are both beyond his control and unavoidable even with diligence."
Sandvik v. United States , 177 F.3d 1269, 1271 (11th Cir. 1999) . This is the view of
every federal circuit other than the Sixth Circuit . See Trenkler v. United States , 268
F .3d 16, 25 (1 st Cir. 2001) ("[T]he doctrine of equitable tolling is available only in rare
cases where, for example, extraordinary circumstances beyond the claimant's control
prevented timely filing, or the claimant was materially misled into missing the deadline .
Equitable tolling is not warranted where the claimant simply failed to exercise due
diligence in preserving his legal rights . In a nutshell, equitable tolling is reserved for
exceptional cases." (citations, internal quotation marks, and internal punctuation
omitted)), cert. denied , 124 S.Ct . 2886, 159 L .Ed .2d 779 (2004) ; Smith v. McGinnis, 208
F.3d 13, 17 (2d Cir.) ("Equitable tolling applies only in the rare and exceptional
circumstance. In order to equitably toll the one-year period of limitations, Smith must
show that extraordinary circumstances prevented him from filing his petition on time ."
(citation, internal quotation marks, and internal punctuation omitted)), cert. denied, 531
U .S. 840, 121 S .Ct . 104, 148 L .Ed .2d 63 (2000) ; Johnson v. Hendricks , 314 F .3d 159,
162 (3d Cir. 2002) ("However, equitable tolling is proper only when the principles of
equity would make the rigid application of a limitation period unfair. Equitable tolling is
permitted if (1) the defendant has actively misled the plaintiff, (2) the plaintiff has in
some extraordinary way been prevented from asserting his rights, or (3) the plaintiff has
timely asserted his rights mistakenly in the wrong forum ." (citations, internal quotation
marks, and internal punctuation omitted)), cert. denied, 538 U .S . 1022, 123 S.Ct. 1950,
155 L.Ed .2d 865 (2003) ; Rouse v. Lee , 339 F .3d 238, 246 (4th Cir. 2003) ("Equitable
tolling is appropriate when, but only when, extraordinary circumstances beyond the
petitioner's control prevented him from complying with the statutory time limit .
Accordingly, under our existing extraordinary circumstances test, Rouse is only entitled
to equitable tolling if he presents (1) extraordinary circumstances, (2) beyond his control
or external to his own conduct, (3) that prevented him from filing on time ." (citations,
internal quotation marks, and internal punctuation omitted)), cert. denied , 541 U .S . 905,
124 S.Ct. 1605, 158 L .Ed .2d 248 (2004); United States v. Patterson , 211 F.3d 927, 930
-31 (5th Cir. 2000) ("Equitable tolling applies principally where the plaintiff is actively
misled by the defendant about the cause of action or is prevented in some extraordinary
way from asserting his rights ." (citation and internal quotation marks omitted)); United
States . v. Marcello , 212 F.3d 1005, 1010 (7th Cir.) ("Extraordinary circumstances far
beyond the litigant's control must have prevented timely filing ."), cert. denied, 531 U.S .
878, 121 S .Ct. 188, 148 L.Ed .2d 130 (2000) ; Kreutzer v. Bowersox, 231 F.3d 460,
463 (8th Cir. 2000) ("Equitable tolling is proper only when extraordinary circumstances
beyond a prisoner's control make it impossible to file a petition on time ."), cert. denied ,
534 U .S . 863, 122 S.Ct . 145,151 L .Ed .2d 97 (2001) ; Shannon v. Newland , 410 F.3d
1083, 1089-90 (9th Cir. 2005) ("Equitable tolling is available only when extraordinary
circumstances beyond a prisoner's control make it impossible to file the petition on time .
Extraordinary circumstances exist when wrongful conduct prevents a prisoner from
filing ." (citation, internal quotation marks, and internal punctuation omitted)); Burger v.
Scott, 317 F .3d 1133, 1141 (10th Cir. 2003) (limiting equitable tolling to "rare and
exceptional" circumstances "when an inmate diligently pursues his claims and
demonstrates that the failure to timely file was caused by extraordinary circumstances
beyond his control" (citation and internal quotation marks omitted)); Jones v. United
States, 304 F.3d 1035, 1040 (11th Cir . 2002) ("[E]quitable tolling is appropriate when a
movant untimely files because of extraordinary circumstances that are both beyond his
control and unavoidable even with diligence ." (citation and internal quotation marks
omitted)).
One would think that this overwhelming weight of authority would be worthy of at
least some analysis by the majority . Instead, they are content to adopt the minority
position of Dunlap. The majority is committed to guiding the trial court to the "right"
answer . To that end, they imply the defendant is entitled to equitable tolling so long as
the trial court answers in the affirmative just one factual question : whether Appellant
"actually delivered a properly prepared and addressed RCr 11 .42 motion to the
appropriate EKKC prison authorities for mailing prior to the expiration of the limitation
period ." Ante at
(Slip op. at 6) . But such a simple approach belies the complexity
of the analysis the trial court should undertake in applying an equitable remedy. Not
only that, it is little more than an adoption of the prison mailbox rule by another name . If
the majority is correct that under Dunla the remedy of equitable tolling can be
determined by asking that single question, then it is merely further proof that the Dunla
approach is inferior to the extraordinary circumstances test.
I believe the trial court's analysis should consist of more than the rote application
of a five-factor balancing test. Equitable tolling, like most equitable remedies, requires
an extraordinary intrusion into the normal judicial and administrative order and, as such,
requires that the trial court engage in a more robust examination of the circumstances
allegedly justifying such an intrusion before allowing it. For example, the trial court
should determine why Appellant waited so late to file his petition. Was it truly beyond
his control to wait to file his petition until so late in the three year period? If not, then it is
likely that he is not entitled to an equitable remedy. See Coleman v. Johnson , 184 F.3d
398, 403 (5th Cir.1999) (noting that "equity is not intended for those who sleep on their
rights" and denying the remedy of equitable tolling to a defendant who inadvertently filed
a petition late). Regardless of the specific factors to be applied, however, the equitable
tolling remedy should not be available whenever a defendant can show that his petition
was late because of excusable neglect . See Irwin v. Department of Veterans
Affairs , 498 U.S . 89, 96, 111 S .Ct. 453, 458, 112 L .Ed .2d 435 (1990) ("Mthe principles
of equitable tolling . . . do not extend to what is at best a garden variety claim of
excusable neglect.") .
As an extraordinary remedy, equitable tolling should be reserved for
extraordinary circumstances . Therefore, I believe we should adopt the extraordinary
circumstances test that has been adopted by every federal court of appeals except one
and remand this matter to the trial court to determine whether Appellant's untimely filing
was because of extraordinary circumstances that were both beyond his control and
unavoidable even with diligence . Because this Court has adopted the wrong test
without a word of analysis and because it has reduced this test to a single factual
question, I respectfully dissent.
RENDERED : NOVEMBER 23, 2005
TO BE PUBLISHED
,suprtnto Courf of
rxxcfixxkV
2003-SC-0948-DG
APPELLANT
LOUIS ROBERTSON
ON REVIEW FROM THE COURT OF APPEALS
2002-CA-896
NELSON CIRCUIT COURT NO. 96-CR-4
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
Y
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I must respectfully dissent from the majority opinion because this Court does not
have authority to amend statutes of limitations adopted by the legislature regarding all
pro se filings .
Initially, Robertson was convicted of five counts of sexual abuse . He was
sentenced to one hundred years in prison and his conviction was affirmed by this Court
in 1999. In 2002, Robertson, pro se, mailed a motion to vacate the judgment pursuant
to RCr 11 .42 . Although the pleadings were mailed according to the procedures of the
institution and recorded in the mail log for February 5, 2002, the pleadings were not
marked filed by the Nelson Circuit Clerk until February 25, 2002, more than 20 days
after the mail was deposited and more than three years after the conviction was final .
The trial judge ruled against Robertson, holding that the three-year time limit was
jurisdictional and required strict compliance . The last day to file for RCr 11 .42 relief was
February 11, 2002.
Robertson relies upon the so-called mailbox rule endorsed by the United States
Supreme Court in Houston v. Lack , 487 U.S . 266, 108 S.Ct. 2379, 101 L.Ed .2d 245
(1988) . The applicable federal statute in this type of situation only provides for a one
year limitation which is different from the three-year period of time allowed under RCr
11 .42(10). The Kentucky rule provides three times as much time to a prisoner as the
federal rule. There is really no reason to allow a pro se prisoner to circumvent clearly
established rules and statutes .
Clearly, relaxation of the rules regarding statutes of limitations and the
appropriate time for the submission of filings directly lead to additional delays in the
judicial system . They afford no benefit to the orderly process of justice in our system .
To favor a pro se prisoner over a prisoner who is represented by counsel would be
obviously unfair. The dilution of reasonable rules by judicial decision is unacceptable .
Justice Antonin Scalia, joined by Chief Justice Renquist and Justices Kennedy
and O'Connor, in dissent of Houston , sums up the arguments as follows :
Today's decision obliterates the line between textual construction and
textual enactment . It would be within the realm of normal judicial
creativity (though in my view wrong) to interpret the phrase "filed with
the clerk" to mean "mailed to the clerk," or even "mailed to the clerk or
given to a person bearing an obligation to mail to the clerk ." But
interpreting it to mean "delivered to the clerk or, if you are a prisoner,
delivered to your warden" is no more acceptable than any of an infinite
number of variants . . . . Like these other examples, the Court's rule
makes a good deal of sense. I dissent only because it is not the rule
we have promulgated . . . .
Recognizing the differences that exist between the state and federal statutes and rules,
I must agree.
It is of interest to note that a rule change which would mirror the arguments of
Robertson in this case was unanimously rejected by this Court in 2004 . Here,
Robertson was not diligent and thus should not be allowed to use the appellate process
to circumvent clearly established rules . The decision could easily result in a flood of
overdue and tardy motions .
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