Womack v. Meko
Filing
13
MEMORANDUM OPINION & ORDER: the Petition for a writ of habeas corpus pursuant to § 2254 be dismissed and that no certificate of appealability issue.. Signed by Judge Joseph M. Hood on 6/8/2011.(JMB)cc: COR,Howard Randall Womack
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
HOWARD RANDALL WOMACK
)
)
)
)
)
)
)
)
)
)
Petitioner,
v.
WARDEN JOSEPH MEKO,
Respondent.
**
**
**
No. 6:10-CV-98-JMH
MEMORANDUM OPINION and ORDER
**
**
This matter is before the Court for consideration of the
Recommended Disposition submitted by Magistrate Judge Hanly A.
Ingram. [D.E. 11].
The Court will consider the matter de novo in
light of Petitioner’s objections thereto. [D.E.
12].
On April 5, 2010, pro se Petitioner Howard Randall Womack
filed a Petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. [D.E. 1]. In accordance with Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts, Judge
Ingram completed an initial review of the Petition, determined that
it was time-barred, and therefore ordered Petitioner to submit any
information
supporting
equitable
tolling
of
the
statute
of
limitations, or to otherwise establish that the Petition was timely
filed. [D.E. 3]. On April 19, 2010, Petitioner filed a response to
the Court’s Order. [D.E. 6]. Upon a thorough review of that
response, Judge Ingram found that Petitioner failed to provide a
sufficient basis in law or fact to toll the limitations period or
otherwise render the motion timely. [D.E. 11]. He recommended that
Petitioner’s § 2254 Petition be DISMISSED because it was untimely,
and further that a that a certificate of appealability be DENIED.
Petitioner pled guilty to first-degree murder. [D.E. 1 at 1].
According
to
the
Kentucky
Court
of
Appeals,
Petitioner
was
sentenced on July 17, 2003, to thirty-five years imprisonment in
Bell Circuit Court.
Womack v. Commonwealth, No. 2009-CA-79-MR,
2009 WL 4876928, at *1 (Ky. Ct. App. Dec. 18, 2009) (unpublished).
On December 10, 2008, Petitioner filed a motion for post-conviction
relief in Bell Circuit Court, pursuant to Kentucky Rule of Criminal
Procedure
11.42,
“requesting
an
evidentiary
hearing
claiming
ineffective assistance of counsel.” Womack, 2009 WL 4876928 at *1.
Rule 11.42(10) requires such a motion to be filed within three
years after the judgment becomes final, subject to two exceptions
not applicable here.
The Bell Circuit Court therefore denied
Petitioner’s motion as untimely, and the Kentucky Court of Appeals
affirmed on December 18, 2009.
Womack, 2009 WL 4876928 at *1.
On April 5, 2010, Petitioner filed a Petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. [D.E. 1].
As noted
above, in accordance with Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts, Judge Ingram
completed an initial review of the Petition, and determined that it
was
time-barred,
information
and
supporting
then
ordered
equitable
2
Petitioner
tolling
of
to
the
submit
any
statute
of
limitations, or otherwise establishing that the Petition was timely
filed.
[D.E.
3].
In
his
response,
Petitioner
appeared
to
acknowledge that the Petition is untimely, but argued that the
Court should “treat this case as extraordinary. . .” and proceed to
address the merits because Petitioner was mentally ill and mentally
impaired, and did not know the statute of limitations. [D.E. 6].
Applying the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Judge Ingram recommends that the Court decline to do so.
AEDPA’s One-Year Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) subjects § 2254 petitions to a one-year limitation period.
28 U.S.C. § 2244(d).
The statute provides that the limitation
period shall begin to run from the date a petitioner’s judgment
becomes final, or from one of three other triggering events not
applicable here.
See 28 U.S.C. § 2244(d)(1)(A).
A judgment of
conviction becomes final for the purposes of § 2244(d)(1)(A) when
either direct review concludes or the time for seeking such review
expires.
See Linscott v. Rose, 436 F.3d 587, 591 (6th Cir. 2006)
(“A person in custody pursuant to the judgment of a state court
must file his application for a writ of habeas corpus within one
year of the date on which the judgment became final by either the
conclusion of direct review or the expiration of the time for
seeking such review.”); Peyton v. Brigano, 256 F.3d 405 (6th Cir.
2001).
3
Kentucky does not allow for a direct appeal from a guilty
plea.
See White v. Sowders, 644 F.2d 1177, 1179 (6th Cir. 1980)
(citing Davis v. Commonwealth, 471 S.W.2d 740 (Ky. 1971)); see also
Arnold v. Motley, No. 06-P204-C, 2009 WL 3064879, at *6 (W.D. Ky.
Sept. 22, 2009). Petitioner’s conviction therefore became final on
July 17, 2003, when the state trial court entered judgment and
sentenced Petitioner.
Accordingly, Petitioner had until July 17,
2004 to file his § 2254 Petition. See 28 U.S.C. § 2244(d)(1)(A);
see also Vroman v. Brigano, 346 F.3d 598, 601-02 (6th Cir. 2003)
(in the absence of any tolling, where conviction became final on
March 18, 1997, the petitioner had until March 18, 1998 to file a
federal habeas petition).
Although Petitioner had until July 17, 2004, to file his §
2254 Petition, he did not do so until April 5, 2010. (D.E. 1). The
Petition is therefore untimely unless Petitioner is either entitled
to statutory tolling under 28 U.S.C. § 2244(d)(2), or entitled to
equitable tolling. Petitioner is not entitled to statutory tolling
of the limitations period.
time
during
which
a
Section 2244(d)(2) states that “[t]he
properly
filed
application
for
state
post-conviction or other collateral review . . . is pending shall
not
be
counted
subsection.”
toward
any
period
of
limitation
under
this
In this case, Petitioner waited more than five years
before filing his Rule 11.42 motion, finally doing so on December
10, 2008.
Womack, 2009 WL 4876928 at *1. Thus, Petitioner’s
4
one-year AEDPA statute of limitations had expired long before he
filed his December 2008 motion seeking post-conviction relief. The
untimely filing of Petitioner’s state post-conviction motion did
not start anew the one-year AEDPA statute of limitations.
Vroman,
346 F.3d at 602 (“The tolling provision does not, however, ‘revive’
the limitations period (i.e. restart the clock at zero); it can
only serve to pause a clock that has not yet fully run. Once the
limitations period is expired, collateral petitions can no longer
serve to avoid a statute of limitations.”) (quoting Rashid v.
Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998)); see also Brockman
v. Haney, No. 10-44-DLB-CJS, 2010 WL 3491215, at *2 (E.D. Ky. June
10, 2010).
Petitioner is therefore not entitled to statutory
tolling pursuant to 28 U.S.C. § 2244(d)(2).
Because Petitioner is not entitled to statutory tolling under
§ 2244(d)(2), the Court must recommend that the Petition be
dismissed unless the doctrine of equitable tolling applies.
The
doctrine of equitable tolling is to be applied “sparingly,” and the
burden is on Petitioner to prove its applicability.
See Vroman,
346 F.3d at 604. In evaluating whether to toll the limitation
period,
the
Supreme
Court
has
remarked
that
“[g]enerally,
a
litigant seeking equitable tolling bears the burden of establishing
two elements: (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way.” See
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v.
5
Department of Veterans Affairs, 498 U.S. 89, 96 (1990)).
To this end, the Sixth Circuit considers the following five
factors:
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; 4) absence of prejudice to
the respondent; and 5) the petitioner’s reasonableness in remaining
ignorant of the legal requirement to file the claim.
Yukins, 366 F.3d at 401.
See Allen v.
Those factors are not necessarily
comprehensive, nor is each factor relevant in every case. See
Vroman, 346 F.3d at 605 (citing Miller v. Collins, 305 F.3d 491,
495 (6th Cir. 2002)).
The Sixth Circuit has also emphasized that
“[a]bsence of prejudice is a factor to be considered only after a
factor that might justify tolling is identified.” Allen v. Yukins,
366 F.3d at 401.
one.
In short, the bar to equitable tolling is a high
Absent compelling equitable considerations, a court should
not extend limitations by even a single day.” Jurado v. Burt, 337
F.3d 638, 643 (6th Cir. 2003) (quoting Graham-Humphreys v. Memphis
Brookes Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000)).
Liberally construing Petitioner’s response [D.E. 6] to the
Court’s Show Cause Order, he argues that equitable tolling should
apply because he lacked notice of the applicable deadline for
filing a § 2254 petition, and because he is mentally ill or
mentally disabled.
Regarding his ignorance of the applicable
deadline, Petitioner states that upon entering prison he “had no
6
understanding of what to do or where to go for help[,]” that he has
a first grade education, and an I.Q. of 68. [Id. at 2].
He also
notes that “[l]egal aides do not roam around in prison following
other prisoners entertaining them with post-conviction matters and
remedies.
No one is table talking about the what-nots of legal
remedies.” [D.E. 6 at 3].
was
exacerbated,
This apparent lack of legal assistance
Petitioner
argues,
because
his
attorney
had
previously instructed him “to not discuss, talk with, share or
speak of his case within anyone . . .” and he therefore “failed to
abide
by
the
state
and
federal
post-conviction matters.” (Id.).
practices
in
place
for
Even if the Court accepted
Petitioner’s claim of ignorance as true, the Sixth Circuit has
“repeatedly held that ‘ignorance of the law alone is not sufficient
to warrant equitable tolling.’” Allen v. Yukins, 366 F.3d 396, 403
(quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991)).
Nor
is a petitioner’s “unfamiliarity with the legal process [or] his
lack of education” a basis for equitable tolling.
Jones, 179 F.App’x 294, 299 (6th Cir. 2006).
Court
is
not
convinced
that
reticence
is
See Harvey v.
Furthermore, the
an
“extraordinary
circumstance” which should trigger equitable tolling. See Pace, 544
U.S. at 418.
Of greater concern to the Court is Petitioner’s apparent claim
that equitable tolling should apply because he is “medically
documented as mentally ill, mentally disabled and . . . [has] been
7
directed to take medications that alters [sic] his state of mind.”
[Id. at 1].
He also claims that his rights “have been disregarded
deliberately simply because he is mentally ill and impaired.” [Id.
at 4].
The “traditional rule [is] that mental illness tolls the
statute of limitations if the illness in fact prevents the sufferer
from managing his affairs and thus from understanding his legal
rights and then acting upon them.”
Miller v. Runyon, 77 F.3d 189,
191 (7th Cir. 1996) (citations omitted). Thus, “[mental illness]
tolls a statute of limitations only if it actually prevents the
sufferer from pursuing his legal rights during the limitations
period.” Price v. Lewis, 119 F. App’x 725, 726 (6th Cir. 2005)
(citing Miller, 77 F.3d at 191).
As one court has held, “[t]he
exceptional circumstances that would justify equitable tolling on
the basis of mental incapacity are not present when the party who
seeks the tolling has been able to pursue his or her legal claims
during the period of his or her alleged mental incapacity.”
Brown
v. McKee, 232 F.Supp.2d 761, 768 (E.D. Mich. 2002); see also Herbst
v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001) (“We will permit
equitable
tolling
of
AEDPA’s
limitations
period
only
if
extraordinary circumstances beyond a prisoner’s control make it
impossible to file a petition on time.”) (internal markings and
citation omitted).
Petitioner does not offer any evidence of mental impairment,
8
past or present which would made it impossible to file a petition
on time. To the contrary, the Petition [D.E. 1] and response [D.E.
6] to the Show Cause Order reveal Petitioner to be capable of
ordering his thoughts and of articulately expressing himself, even
displaying a dry wit. [See D.E. 6]
(“Legal aides do not roam
around in prison following other prisoners entertaining them with
post-conviction matters and remedies.).
Although those filings
are likely more reflective of his present ability to pursue his
legal claims, Petitioner fails to present evidence that mental
illness or incompetency prevented Petitioner “from pursuing his
legal rights during the limitations period.” Price, 119 F. App’x at
726. Petitioner offers no evidence, such as prior adjudications of
incompetency or affidavits by prison officials, to prove mental
illness or incapacity during the relevant limitations period of
July 17, 2003, through July 17, 2004.
In his objections to Judge
Ingram’s
his
submits
Recommended
a
partial
responsibility.
Disposition
report
[D.E.
11,
of
of
his
Exhibit].
mental
Petition,
Petitioner
competency/criminal
Nothing
in
that
report
demonstrates that Petitioner was so mentally impaired that it was
impossible for him to pursue his legal remedies.
The record
indicates only that Petitioner failed to diligently pursue his
rights until December 2008.
Having considered the relevant factors, the Court finds that
Judge Ingram correctly determined that Petitioner failed to show
9
why equitable tolling should apply in this case.
Because the
Petition was not timely filed, and because there is no basis for
tolling the one-year AEDPA statute of limitations, Petitioner’s §
2254 Petition shall be dismissed.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases
in the United States District Courts, a district court must issue
or deny a certificate of appealability (COA) when it enters a final
order adverse to the applicant.
A COA may issue only if a
petitioner has made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2).
In cases where a
district court has rejected constitutional claims on the merits,
“the petitioner must demonstrate that reasonable jurists would find
the
district
court's
debatable or wrong.”
assessment
of
the
constitutional
claims
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
“When a district court denies a habeas petition on procedural
grounds without reaching the petitioner's underlying constitutional
claim, a COA should issue when the petitioner shows, at least, that
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id.
In this case, reasonable jurists would not debate the denial
of this § 2254 Petition, or conclude that the issues presented are
10
adequate
to
deserve
encouragement
to
proceed
further.
See
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529
U.S. at 484).
No certificate of appealability shall issue.
Accordingly,
IT IS ORDERED that the Petition for a writ of habeas corpus
pursuant
to
§
2254
be
dismissed
appealability issue.
This the 8th day of June, 2011.
11
and
that
no
certificate
of
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?