Harvey v. Price et al
MEMORANDUM OPINION. Signed by Judge R David Proctor on 6/6/2018. (KAM)
2018 Jun-06 AM 10:56
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WARDEN CHERYL PRICE, et al.,
Case No.: 2:15-cv-01022-RDP-SGC
This is an action on a petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254 by Danny Harvey, a state prisoner proceeding pro se. (Doc. 1).
Harvey challenges his 2012 conviction in Jefferson County Circuit Court for
capital murder. (Id. at 2). On April 26, 2018, the Magistrate Judge entered a
report and recommendation pursuant to 28 U.S.C. § 636(b), recommending the
petition be denied as time-barred and procedurally defaulted. (Doc. 10). Harvey
timely filed objections to the report and recommendation. (Doc. 13).
In his objections, Harvey concedes his claims are time-barred and
procedurally defaulted. (Doc. 13 at 1). Harvey, however, requests the court apply
equitable tolling because he is illiterate, does not understand the proper court
procedures, and relied on “jail house lawyers” in his filngs. (Id. at 2-3). Equitable
tolling is not warranted in this case.
Equitable tolling is “an extraordinary remedy which is [ ] applied sparingly”
and “is limited to rare and exceptional circumstances.” Lawrence v. Florida, 421
F.3d 1221, 1226 (11th Cir. 2005), aff’d, 549 U.S. 327 (2007). “The petitioner
bears the burden of showing that equitable tolling is warranted.”
Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009). Specifically, a petitioner must
“show (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Holland
v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted); see also
Helton v. Sec’y for Dept. of Corr., 259 F.3d 1310, 1312 (11th Cir. 2001). “The
diligence required for equitable tolling purposes is reasonable diligence, not
maximum feasible diligence.” Holland, 560 U.S. at 653 (internal quotation marks
and citation omitted). But, in addition to reasonable diligence, a petitioner must
also show that some extraordinary circumstance caused the untimely filing. That
is, a petitioner must “show a causal connection between the alleged extraordinary
circumstances and the late filing of the petition.” San Martin v. McNeil, 633 F.3d
1257, 1267 (11th Cir. 2011).
Harvey has not demonstrated the extraordinary circumstances necessary to
warrant equitable tolling.
Harvey’s lack of counsel for his post-conviction
proceedings, lack of legal training, and failure to fully understand his rights or the
applicable legal procedures do not provide a basis for equitable tolling. Wakefield
v. R.R. Ret. Bd., 131 F.3d 967, 970 (11th Cir. 1997); Rivers v. United States, 416
F.3d 1319, 1323 (11th Cir. 2005). Additionally, an inadequate prison law library
or limited access to the library or prison law clerks does not establish extraordinary
circumstances for equitable tolling. See Atkins v. United States, 204 F.3d 1086,
1089–90 (11th Cir. 2000).
Having carefully reviewed and considered de novo all the materials in the
court file, including the Report and Recommendation and Harvey’s objections
thereto, the court is of the opinion that the Magistrate Judge’s findings are due to
be and are hereby ADOPTED and her recommendation is ACCEPTED.
Harvey’s objections are OVERRULED. Accordingly, the petition for writ of
habeas corpus is due to be DENIED and DISMISSED WITH PREJUDICE.
Further, because the petition does not present issues that are debatable among
jurists of reason, a certificate of appealability is also due to be DENIED. See 28
U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000); Rule 11(a),
Rules Governing § 2254 Proceedings. A separate, final order will be entered.
DONE and ORDERED this June 6, 2018.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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