Collins v. White

Filing 23

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 6/5/2017. IT IS HEREBY ORDERED that Petitioner's Motion for Equitable Tolling (DN 3 ) is GRANTED, and Plaintiff's Motion for Evidentiary Hearing (DN 22 ) is DENIED AS MOOT. cc: Counsel; Petitioner, pro se (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:15-CV-26-GNS-HBB
JOHN WAYNE COLLINS

PETITIONER

v.

RANDY WHITE, WARDEN

RESPONDENT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Petitioner’s Motion for Equitable Tolling (DN 3) and
Plaintiff’s Motion for Evidentiary Hearing (DN 22). For the reasons stated below, the Motion
for Equitable Tolling is GRANTED, and the Motion for Evidentiary Hearing is DENIED AS
MOOT.
I.

BACKGROUND

Petitioner John Wayne Collins (“Collins”) was convicted of murder in Warren Circuit
Court. (Pet’r’s Mot. Equitable Tolling 1, DN 3 [hereinafter Pet’r’s Mot.]; Resp’t’s Resp. Pet’r’s
Mot. Equitable Tolling 2, DN 9 [hereinafter Resp’t’s Resp.]). His conviction was upheld on
direct appeal to the Kentucky Supreme Court, and his petition for rehearing was denied. (Pet’r’s
Mot. 1; Resp’t’s Resp. 2). Petitioner’s collateral attack of the conviction in Kentucky courts
pursuant to Kentucky Rule of Criminal Procedure 11.42 (“RCr 11.42”) was unsuccessful at the
trial and intermediate appellate levels, and the Kentucky Supreme Court denied further review on
December 11, 2013. (Pet’r’s Mot. 2-3; Resp’t’s Resp. 3).
After Collins learned that his attorney would not be pursuing a petition for habeas corpus
under 28 U.S.C. § 2254 on his behalf, Collins petitioned this Court pro se and moved for

equitable tolling to excuse the belated filing of his petition. This Court previously denied
Collins’ motion and dismissed the petition as untimely. (Mem. Op. & Order 13).
In Collins v. White, No. 15-6129, slip op. (6th Cir. Mar. 2, 2017), the Sixth Circuit
reversed and remanded this Court’s ruling. See id. at 5. In remanding this case, the Sixth Circuit
directed this Court to consider the diligence prong under the analysis set forth in Holland v.
Florida, 560 U.S. 631 (2010). See id.
II.

JURISDICTION

This Court has jurisdiction to “entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State court” pursuant to 28 U.S.C. §
2254.
III.
A.

DISCUSSION

Petitioner’s Motion for Equitable Tolling

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Collins
had a one-year statute of limitations that ran from the denial of his collateral attack of this state
court conviction. See 28 U.S.C. § 2244(d)(1). The statute of limitations, however, is subject to
the defense of equitable tolling in appropriate circumstances. See Holland, 560 U.S. at 645
(citations omitted).
In Holland, the Supreme Court reiterated that the defense of equitable tolling is only
applicable if a petitioner shows the following:

“‘(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely
filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Because the Sixth
Circuit has previously concluded that Collins had satisfied the second prong, this Court’s
consideration is limited to the first one in determining whether to grant Petitioner’s motion.

2

The diligence requirement “covers those affairs within the litigant’s control . . . .”
Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 756 (2016). In addition, the
petitioner “must have acted with reasonable diligence throughout the period he seeks to toll.”
Rabbani v. United States, 156 F. Supp. 3d 396, 403 (W.D.N.Y. 2016) (internal quotation marks
omitted) (citation omitted). As the Supreme Court has explained, “[t]he diligence required for
equitable tolling purposes is reasonable diligence, not maximum feasible diligence. Id. at 653
(internal quotation marks omitted) (internal citation omitted) (citation omitted). “The statute of
limitations should be equitably tolled until the earliest date on which the petitioner, acting with
reasonable diligence, should have filed his petition.” Kendrick v. Rapelje, 504 F. App’x 485,
487 (6th Cir. 2012) (citing Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)). As the party
seeking to apply equitable tolling, Collins bears the burden of proof. See Griffin v. Rogers, 308
F.3d 647, 653 (6th Cir. 2002) (citation omitted).
For the purpose of the Court’s analysis, the key dates are as follows:
Date
12/11/2013

12/13/2013
10/7/2014 &
10/8/2014

Event
Kentucky Supreme Court denied White’s motion for
discretionary review of his RCr 11.42 action. (Pet’r’s Mot.
Equitable Tolling App., at 42, DN 1-1).
Collins’ counsel sent him a letter notifying him of the Kentucky
Supreme Court’s order. (Pet’r’s Mot. 3-4).
Collins’ sister, Ethel Roberts (“Roberts”) attempted to contact
Collins’ attorney by telephone on two occasions.1 (Roberts Aff.
1-2). According to Roberts, the office of Collins’ attorney
denied representation of Collins. (Roberts Aff. 1).

1

On Collins’ behalf, his sister has submitted an unnotarized affidavit. (Roberts Aff., DN 11-1).
Attached to that document is a printout of call log for her cell phone, which purports to reflect a
call by her to Collins’ attorney on October 8, 2014, at 1:53 p.m., which lasted for approximately
five minutes. (Roberts Aff. 4).
3

Date
11/2014 or 12/2014

12/21/2014
2/11/2015

2/23/2015

2/27/2015

Event
Collins contacted his attorney’s office about the status of the
petition prior to the running of the statute of limitations. (Pet’r’s
Reply Mot. Equitable Tolling 2, DN 10).
The one-year statute of limitations in the AEDPA expires.2
Collins’ counsel sent him a letter, which was received on
2/17/2015. (Pet’r’s Mot. 4). In that letter, the attorney informed
Collins of his failure to file the petition and encouraged Collins
to proceed pro se. (Pet’r’s Mot. 4).
Collins signed and mailed the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 and the Motion for Equitable
Tolling. (Pet. Writ Habeas Corpus 14, DN 1; Pet’r’s Mot. 10).
The petition and motion were docketed.

In evaluating Collins’ diligence, the Court believes it is beneficial to consider the
diligence exercised by the petitioner in Holland and compare that to Collins’ circumstances. In
Holland, the petitioner did as follows:
Holland not only wrote his attorney numerous letters seeking crucial information
and providing direction; he also repeatedly contacted the state courts, their clerks,
and the Florida State Bar Association in an effort to have [his attorney]—the
central impediment to the pursuit of his legal remedy—removed from his case.
And, the very day that Holland discovered that his AEDPA clock had expired due
to [his attorney’s] failings, Holland prepared his own habeas petition pro se and
promptly filed it with the District Court.
Holland, 560 U.S. at 653. While Collins was clearly not as diligent as the petitioner in Holland,
there is not a complete absence of diligence either. Clearly, Collins was not diligent for the first
approximately ten months while the statute of limitations was running when he did not have any
communications with this attorney. Thereafter, however, Collins, as well as his sister acting on
his behalf, did try to contact his attorney about the status of the petition.

Collins’ last

communication with his attorney was approximately within two months prior to the expiration of
the statute of limitations. As soon as Collins learned of his attorney’s failure to pursue habeas
2

As Respondent noted in his response to the pending motion, Collins’ filing of the RCr 11.42
motion tolled the AEDPA’s limitations period before the statute had begun to accrue. (Resp’t’s
Resp. 7).
4

relief in federal court, Collins mailed the Petition and this motion within six days. When all of
these events are considered, the Court believes that this is a close call.
Because Collins was required to exercise reasonable diligence and not maximum feasible
diligence, the Court concludes that Collins has satisfied his burden to proving reasonable
diligence and his entitlement to equitable tolling. Accordingly, the motion will be granted, and
the Petition for Habeas Corpus will proceed on its merits.
B.

Petitioner’s Motion for Evidentiary Hearing

Collins has also moved for an evidentiary hearing. Because the Court finds that such a
hearing is unnecessary, the motion will be denied as moot.
IV.

CONCLUSION

For the reasons listed above, IT IS HEREBY ORDERED that Petitioner’s Motion for
Equitable Tolling (DN 3) is GRANTED, and Plaintiff’s Motion for Evidentiary Hearing (DN
22) is DENIED AS MOOT.

Greg N. Stivers, Judge
United States District Court
June 5, 2017

cc:

counsel of record
Petitioner, pro se

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