Shelley v. Meko
Filing
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MEMORANDUM OPINION & ORDER: 1. The Petitioner's Objections to the Magistrate's Report and Recommendation [R. 15 ] are OVERRULED; 2. The Magistrate Judge's Recommended Disposition [R. 14 ] is ADOPTED as and]for the opinion of this Co urt; 3. The Respondent's Motion to Dismiss [R. 7 ] is GRANTED; 4. The Respondent's Motion for Extension of Time is DENIED as moot; 5. The Petitioner's Motion for an Evidentiary Hearing [R. 11 ] is DENIED; 6. The Petitioner's Mot ion to Stay Proceedings [R. 12 ] is DENIED; 7. The Petitioner's Petition [R. 1 ] is DISMISSED WITH PREJUDICE; 8. JUDGMENT in favor of the Defendant will be entered contemporaneously herewith. Signed by Gregory F. VanTatenhove on 9/30/11.(SYD)cc: COR, mailed to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
DANNY S. SHELLEY,
Petitioner,
v.
JOSEPH MEKO, Warden,
Respondent.
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Civil No. 10-198-GFVT
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MEMORANDUM OPINION
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AND ORDER
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This matter is before the Court upon the pro se Petition for Writ of Habeas Corpus [R. 1]
pursuant to 28 U.S.C. § 2254 filed by Danny S. Shelley. Consistent with local practice, this
matter was referred to Magistrate Judge Edward B. Atkins for initial screening and preparation of
a report and recommendation. Judge Atkins filed his Recommended Disposition [R. 14] on
August 16, 2011. Therein, he recommends that Shelley’s petition be denied with prejudice
because Shelley failed to file his action within the statute of limitations outlined in the
Antiterrorism and Effective Death Penalty Act of 1996, and he was unsuccessful in satisfying the
requirements for tolling pursuant to 28 U.S.C. § 2244(d)(1)(B) or equitable tolling provided for
by case precedent. [Id.]
Shelley filed four timely objections to the Recommended Disposition. [R. 15.] Therein,
Shelley objected to the Magistrate Judge’s finding for when the one-year statute of limitations
provided by § 2244(d)(1) began to run. Shelley also objected to the finding that he is ineligible
for equitable tolling. Additionally, Shelley objected to the Magistrate Judge’s recommendation
that an evidentiary hearing regarding Shelley’s competence was unnecessary. Finally, Shelley
objected to the Magistrate Judge’s decision to refrain from staying these proceedings while post1
conviction proceedings moved forward in state court. Those objections trigger this Court’s
obligation to conduct a de novo review. See 28 U.S.C. § 636(b)(1)(c). The Court has satisfied
that duty, reviewing the entire record, including the pleadings, the parties’ arguments, relevant
case law and statutory authority, as well as applicable procedural rules. For the following
reasons, Shelley’s objections will be overruled and his motions denied.
I.
Judge Atkins’s Recommended Disposition accurately sets out the factual and procedural
background of the case and the applicable standard of review for granting habeas relief pursuant
to § 2254(d). Only one insignificant correction should be noted: Shelley filed his motion to stay
proceedings on August 4, 2011 instead of August 5, 2011, as cited in the Recommended
Disposition. Except for what the Court supplements in its discussion below, the Court has nothing
to add and therefore incorporates Judge Atkins’s discussion of the record and the standard of
review into this order.
II.
Before turning to the substance of Shelley’s objections, the Court acknowledges its duty to
review Shelley’s pleadings under a standard that is more lenient than the one applied to attorneys
since he is proceeding pro se. The law is clear in this circuit that “however inartfully pleaded”
allegations in a pro se complaint are entitled to a “liberal construction” that requires “active
interpretation in some case to construe a pro se petition to encompass any allegation stating
federal relief.” Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cr. 1985). The Court notes that the
arguments in Shelley’s habeas petition, as well as his subsequent motions, pleadings, and
objections are clearly presented.
A.
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Turning now to Shelley’s substantive objections, Shelley essentially objected to the
Magistrate’s finding that the one-year statute of limitations provided by § 2244(d)(1)(A) applied
to his case. Section 2244(d)(1)(A) stipulates that the one-year statute of limitations provided in §
2244(d)(1) began running, in this case, thirty days after judgment was rendered against Shelley in
state court. See 28 U.S.C. § 2244(d)(1)(A) (2006); Ky. R. Crim. P. 12.04(3). As explained
thoroughly in the Magistrate Judge’s Recommended Disposition, the one-year statute of
limitations began running on April 4, 2003, and the limitations period ended on April 4, 2004.
Neither post-conviction relief nor collateral review was sought during that period, thus, the tolling
provision in § 2244(d)(2) was not implicated.
Shelley proposed a different starting point for the period of limitations premised on his
contention that he lacked the mental capacity to assert his claim and legal aides at the Green River
Correctional Complex refused to provide him legal assistance. Shelley cites § 2244(d)(1)(B) as the
statutory provision under which this case falls, meaning he is fundamentally arguing that his
incapacity and the unhelpful legal aides amounted to a state-created impediment to pursuing his
habeas action in violation of the Constitution or laws of the United States. Consequently, the oneyear statute of limitations would not start to run until that impediment was removed. Under that
factual scheme, the limitations period began on August 2, 2005, when Shelley was transferred to
Little Sandy Correctional Complex.
After reviewing de novo the entire record, including the pleadings, the parties’ arguments,
relevant case law and statutory authority, the Court notes that it is in agreement with Judge
Atkins’s analysis of Shelley’s claims under § 2244(d)(1)(A) and § 2244(d)(1)(B). Because
Shelley did not object to the Magistrate Judge’s findings regarding § 2244(d)(1)(A), those
findings will be adopted as part of the Court’s opinion and represent one ground for denying
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Shelley’s claim.
Judge Atkins’s analysis of Shelley’s impediment claim under § 2244(d)(1)(B) is thorough
and comprehensive, and the Court is in agreement with the Magistrate’s conclusion. The Court
will adopt the Magistrate’s recommendation and reasoning on this claim as another ground for
ruling against Shelley. In other words, the Court agrees that Shelley did not face a sufficient
impediment to come under § 2244(d)(1)(B). The Court’s primary reason for finding against
Shelley, however, is that he failed to file his claim within the statute of limitations, even if the
one-year period begins on August 2, 2005—the date the alleged obstacle consisting of unhelpful
legal aides was removed.
Proceeding under the assumption that § 2244(d)(1)(B) is the appropriate statutory
paradigm, the statute of limitations started running on August 2, 2005. Shelley filed a motion to
vacate judgment and sentence in Pulaski Circuit Court on February 14, 2006.1 Accordingly, the
time between August 2 and February 13—196 days—is deducted from the 365 days that Shelley
was allotted to file his action. On August 21, 2007, the Supreme Court of Kentucky denied
Shelley’s request to review the decision of the Kentucky Court of Appeals. On August 22, 2007,
then, the remaining 169 days in the limitations period began to dissipate. The one-year statute of
limitations, including applicable tolling, expired on February 7, 2008. Shelley filed a second post-
1
In Meko’s Response to Motion for Evidentiary Hearing, [R. 12 at 3] Meko cites a series
of dates on which Shelley filed particular actions and the time period during which those actions
remained pending. Unless those dates were contradicted by information in Shelley’s petition and
attachments or another pleading or motion, they were presumed to be correct. The only date that
was contradicted was the date of Shelley’s initial post-conviction filing. Meko lists that date as
February 26, 2006. [Id.] Attachment 1 to Shelley’s Petition for the Writ of Habeas Corpus,
meanwhile, includes a copy of Shelley’s Motion to Vacate Judgment that was filed in Pulaski
Circuit Court on February 14, 2006. [R. 1, Attach. 1 at 77.] February 14 was utilized for the
Court’s calculations. The Court scoured Shelley’s filings to verify other dates but was unable to
uncover any other errors. Because Shelley did not object nor present contradictory evidence
refuting the dates in Meko’s response, those dates are admitted as true.
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conviction motion in state court on October 22, 2008—258 days tardy. The second state
proceeding ended on March 26, 2010. But the pending action was not filed until July 15, 2010—
an additional 110 days. Hence, even accepting Shelley’s impediment argument, his claim was not
filed in a timely enough manner to satisfy the statute of limitations prescribed in 28 U.S.C. §
2244(d)(1) and must be denied.
B.
Shelley also objected to the Magistrate Judge’s Recommended Disposition that Shelley
was ineligible for equitable tolling. Shelley put forth at least seven different reasons that
equitable tolling should be available to him: (1) a psychologist examined Shelley and wrote that,
at the time of Shelley’s crime and plea bargain, he “was suffering from significant substance
withdrawal symptoms, producing mental confusion, delirium, and depression”; (2) “petitioner
was trying to acclimate himself to prison life”; (3) Shelley was “suffering from withdrawal
symptoms of past drug addiction”; (4) Shelley “was facing an extreme [sic] hostile prison
population”; (5) “petitioner had no knowledge or experience with complicated legal matters”; (6)
Shelley was distracted because his attorneys kept him busy testifying in co-defendants’ trials and
giving interviews to media outlets; and, (7) Shelley confronted hostile inmate legal aides at Green
River Correctional Complex. [R. 15 at 5-7.]
Judge Atkins’s recommendation extensively addresses the case law supporting equitable
tolling and Shelley’s justifications for its application to his case. The Court is in agreement with
the Magistrate Judge that equitable tolling should not be applied to Shelley’s case, and there is
little that this Court could add to Judge Atkins’s report. Nevertheless, the Court will briefly
expound on two points. First, Shelley’s claim of incompetence and the evidence supporting that
claim is time-sensitive. That is, Dr. Schilling’s report is focused on Shelley’s competence at the
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time of the commission of the crime and when Shelley agreed to the plea bargain. To obtain
equitable tolling, meanwhile, Shelley must make a showing that incompetence prevented him
from pursuing his claim. See McSwain v. Davis, 287 Fed. App’x 450, 456 (6th Cir. 2008). Such
a showing has not been made, and consequently, equitable tolling is unavailable to Shelley.
Second, many of Shelley’s remaining objections are focused on his time at Green River
Correctional Complex. Assuming the reasons put forth by Shelley would justify tolling the time
spent at Green River, those justifications lapsed once Shelley was confined at Little Sandy
Correctional Complex. Shelley acknowledges that once he arrived at Little Sandy he obtained
assistance in navigating the legal system [R. 1 at 27]; yet, a habeas petition was not submitted to
federal court for more than two years (after time is subtracted for pending state claims). This
behavior, in light of the factors that are to be considered for equitable tolling, weighs heavily
against the factors that would justify granting Shelley’s request. See Dunlap v. United States, 250
F.3d 1001, 1008 (6th Cir. 2001).
For the reasons cited in Judge Atkins’s Recommended Disposition and those outlined
above, the Court will reject Shelley’s claim for equitable tolling.
C.
Next, the Court considers Shelley’s objection to the Magistrate Judge’s recommendation
that an evidentiary hearing is unwarranted. As Shelley notes in his objection, evidentiary
hearings are useful when factual allegations are in dispute. Here, there are no meaningful factual
disputes. Even when Shelley’s claims are examined in a light most favorable to him, clearly
established facts refute Shelley’s arguments. Shelley’s motion for an evidentiary hearing is
therefore denied.
D.
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Shelley’s final objection is to the Magistrate Judge’s recommendation denying Shelley’s
motion to stay proceedings. Shelley explained in his objection that the hearing he may receive in
state court relates to his competence at the time of the crime and plea bargain. The preceding
rulings were unrelated to Shelley’s competence at those times, and thus, the state court ruling
would not influence the Court’s dispositions expressed above. Hence, the Court is in agreement
with the Magistrate Judge that Shelley’s motion should be denied.
III.
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as follows:
1.
The Petitioner’s Objections to the Magistrate’s Report and Recommendation
[R. 15] are OVERRULED;
2.
The Magistrate Judge’s Recommended Disposition [R. 14] is ADOPTED as and
for the opinion of this Court;
3.
The Respondent’s Motion to Dismiss [R. 7] is GRANTED;
4.
The Respondent’s Motion for Extension of Time is DENIED as moot;
5.
The Petitioner’s Motion for an Evidentiary Hearing [R. 11] is DENIED;
6.
The Petitioner’s Motion to Stay Proceedings [R. 12] is DENIED;
7.
The Petitioner’s Petition [R. 1] is DISMISSED WITH PREJUDICE;
8.
JUDGMENT in favor of the Defendant will be entered contemporaneously
herewith.
This the 30th day of September, 2011.
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