Bagby v. Superintendent
OPINION AND ORDER DENYING 1 PETITION for Writ of Habeas Corpus filed by Petitioner James T Bagby. Petitioner DENIED a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11. Petitioner DENIED leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3). Clerk DIRECTED to enter judgment in favor of Respondent Superintendent and against Petitioner James T Bagby. Signed by Judge Robert L Miller, Jr on 6/14/17. (cc: James T Bagby). (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMES T. BAGBY,
CAUSE NO. 3:16-CV-186
OPINION AND ORDER
James T. Bagby, a prisoner without an attorney, filed a habeas corpus
petition challenging his convictions and 30 year sentence for two counts of
sexual misconduct with a minor by the Howard Circuit Court on December 16,
2009, under cause number 34C01-0901-FC-1. Mr. Bagby acknowledges that the
petition signed on March 22, 2016, is untimely. He doesn’t dispute the
Respondent’s calculation that the deadline was December 28, 2015. He argues
that he is entitled to equitable tolling and can demonstrate actual innocence.
“[A] petitioner is entitled to equitable tolling only if he shows (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 (2010) (quotation marks and citation omitted). Equitable tolling is
an extraordinary remedy that is rarely granted. Obriecht v. Foster, 727 F.3d 744,
748 (7th Cir. 2013). “Petitioners bear the burden of proving that they qualify for
equitable tolling.” Taylor v. Michael, 724 F.3d 806 (7th Cir. 2013).
Mr. Bagby argues that he has pursued his rights diligently, but that his
attorneys miscalculated the deadline for filing a habeas corpus petition. In
support, he has filed several letters sent to and from his attorneys. These letters
show that Mr. Bagby’s attorneys were working on a State (not a federal) habeas
corpus petition. None of the letters from his attorneys mention a deadline for
filing a federal habeas corpus petition. Only a letter from Mr. Bagby includes a
miscalculation of the deadline. Nevertheless, even if Mr. Bagby could produce a
letter from his attorneys with a miscalculated deadline, “’Attorney miscalculation
of a deadline is simply not sufficient to warrant equitable tolling,’ neither is
petitioner miscalculation.” Taylor v. Michael, 724 F.3d 806, 812 (7th Cir. 2013)
(brackets omitted) quoting Lawrence v. Florida, 549 U.S. 327, 336 (2007).
Therefore, without regard to whether it was he or his attorneys who
miscalculated the deadline, Mr. Bagby hasn’t shown that he is entitled to
Mr. Bagby also argues that he is actually innocent. A petitioner who
asserts actual innocence “must demonstrate innocence; the burden is his, not
the state’s . . ..” Buie v. McAdory, 341 F.3d 623, 626-27 (7th Cir. 2003) (emphasis
in original). Furthermore, actual innocence means “factual innocence, not mere
legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). To
support a claim of actual innocence the petitioner must come forward with “new
reliable evidence – whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence – that was not presented at
trial,” id., and must show that “in light of new evidence, it is more likely than not
that no reasonable juror would find him guilty beyond a reasonable doubt.”
House v. Bell, 547 U.S. 518, 537 (2006). Because of the difficulty of meeting this
standard, such claims are “rarely successful.” Schlup v. Delo, 513 U.S. 298, 324
Mr. Bagby has not submitted either scientific evidence, an eyewitness
account, or physical evidence. Rather he has presented an affidavit from Dale
Prophet, Jr., the child sexual misconduct victim’s father which states:
1. While talking with my daughter, Amanda Roe she disclosed
to me that she had made up the allegations in which James T.
Bagby, her step father had been charged with two sexual
misconduct charges. She stated she had made the whole story up
just to get him into trouble.
2. Regretfully my daughter, Amanda Roe has had a past and
ECF 23-2 at 36 (“3. ______” hand written in original).
“In the new trial context, motions based solely upon affidavits are
disfavored because the affiants’ statements are obtained without the benefit of
cross-examination and an opportunity to make credibility determinations.
Petitioner’s affidavits are particularly suspect in this regard because . . . they
consist of hearsay.” Herrera v. Collins, 506 U.S. 390, 417 (1993) (citation
omitted). So too with this affidavit. Mr. Prophet repeats a statement made by the
victim – that is hearsay. The affidavit in Herrera was given more than eight years
after the trial. This one was made nearly seven years later. But “[n]o satisfactory
explanation has been given as to why the affiant waited until the 11th hour . .
..” Id. Mr. Prophet gives no information about when he had this conversation
with the victim. Nor is there any information about how this affidavit was
prepared or executed. There is no indication that this affidavit constitutes
reliable evidence and it does not come close to demonstrating actual innocence.
Finally, under Section 2254 Habeas Corpus Rule 11, the court must grant
or deny a certificate of appealability. To obtain a certificate of appealability under
28 U.S.C. § 2253(c), the petitioner must make a substantial showing of the denial
of a constitutional right by establishing “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
For the reasons explained in this opinion, there is no basis for encouraging Mr.
Bagby to proceed further. Thus, a certificate of appealability will be denied. For
the same reasons, he may not appeal in forma pauperis because an appeal could
not be taken in good faith.
For these reasons, the court:
(1) DENIES the habeas corpus petition;
(2) DENIES a certificate of appealability pursuant to Section 2254
Habeas Corpus Rule 11;
(3) DENIES leave to appeal in forma pauperis pursuant to 28 U.S.C.
§ 1915(a)(3); and
(4) DIRECTS the clerk to enter judgment in favor of the Respondent
and against the Petitioner.
ENTERED: June 14, 2017.
/s/ Robert L. Miller, Jr.
United States District Court
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