Florentin (ID 98591) v. Cline

Filing 5

MEMORANDUM AND ORDER ENTERED: Petitioner's motion to vacate, correct, or set aside his sentence 2 is denied. The petition for habeas corpus is dismissed. No certificate of appealability will issue. Signed by U.S. Senior District Judge Sam A. Crow on 01/05/18. Mailed to pro se party Nicholas Florentin by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

NICHOLAS FLORENTIN,
Petitioner,
v.

CASE NO. 17-3206-SAC

SAM CLINE,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. On December 1, 2017, the Court directed petitioner to show
cause why this matter should not be dismissed due to his failure to
commence this matter within the one-year limitation period under 28
U.S.C. § 2244(d)(1)(A). Petitioner filed a timely response.
Analysis
Petitioner does not contend this matter was timely filed; rather,
he seeks equitable tolling. He states that he was unaware of a time
limit to file a petition under Section 2254 and that his attorney did
not advise him of a time limit. He points out that he has pursued relief
diligently and has invested considerable resources in challenging his
conviction.
Equitable tolling of the habeas corpus limitation period is
available in “rare and exceptional circumstances.” Gibson v. Klinger,
232 F.3d 799, 808 (10th Cir. 2000). In order to qualify for such
tolling, 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)(quotations omitted). A petitioner seeking equitable

tolling has a “strong burden to show specific facts” in support of
the necessary showing. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.
2008).
The Court has considered petitioner’s arguments but concludes
that he is not entitled to equitable tolling. Petitioner’s argument
of ignorance of the law and the tolling period are insufficient to
excuse his failure to timely file. It is settled that a pro se
petitioner’s ignorance of the law generally does not excuse the
failure to timely file. Marsh v. Soares, 223 F.3d 1217, 1220 (10th
Cir. 2000)(quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir.
1999)).
The failure of petitioner’s counsel to advise him of the deadline
likewise does not excuse the failure. Petitioner does not specify
whether he refers to trial or appellate counsel, and it is unclear
whether he ever retained counsel for habeas corpus. However, “the
Tenth Circuit has held that attorney negligence is not generally a
basis for equitable tolling.” United States v. Gibson, 2012 WL
3639049, at *1 (N.D. Okla. Aug. 23, 2012)(unpublished), aff’d 512
F.App’x 840 (10th Cir. Mar. 11, 2013)(unpublished). Certainly, if he
refers to habeas corpus counsel, negligence by such counsel “is not
generally a basis for equitable tolling because ‘there is no
constitutional right to an attorney in state post-conviction
proceedings.’” Fleming v. Evans, 481 F.3d 1249, 1255 (10th Cir.
2007)(quoting Coleman v. Thompson, 501 U.S. 722, 752 (1991)).
For these reasons, the Court finds petitioner is not entitled
to equitable tolling and concludes the petition for habeas corpus must
be dismissed as time-barred.

Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, “[t]he district court must issue or
deny a certificate of appealability when it enters a final order
adverse to the applicant.” The district court may issue a certificate
of appealability “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When
a petition is dismissed on procedural grounds, the petitioner must
show both “(1) that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional
right and (2) that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Here, the Court concludes that reasonable jurists would not
debate its procedural finding that the petition is time-barred and
that petitioner has not demonstrated that he is entitled to equitable
tolling of the limitation period. The Court therefore declines to
issue a certificate of appealability.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
vacate, correct, or set aside his sentence (Doc. #2) is denied, and
the petition for habeas corpus is dismissed.
IT IS FURTHER ORDERED no certificate of appealability will issue.
IT IS SO ORDERED.
DATED:

This 5th day of January, 2018, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge