Balcar v. Kentucky State Reformatory

Filing 8

MEMORANDUM OPINION by Chief Judge Joseph H. McKinley, Jr. on 9/22/2017: The Court concludes that Balcar is not entitled to equitable tolling and that this action is untimely. By separate Order, the Court will dismiss this action. cc: Petitioner (pro se), Respondent, Attorney General, Commonwealth of Kentucky (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

YALE LARRY BALCAR

PETITIONER

v.

CIVIL ACTION NO. 3:17CV-P24-JHM

KENTUCKY STATE REFORMATORY

RESPONDENT

MEMORANDUM OPINION
Petitioner Yale Larry Balcar filed this action pursuant to 28 U.S.C. § 2254 seeking a writ
of habeas corpus. The Court reviewed the petition under Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts. Upon review, the Court directed Balcar to show
cause why his petition should not be dismissed as time-barred under the applicable one-year
statute of limitations. Balcar responded to the Court’s Show Cause Order. Upon review, for the
reasons set forth below, the Court will dismiss t
he petition as untimely.
I. FACTUAL AND PROCEDURAL BACKGROUND
According to the petition, Balcar was convicted in “Dec. 2013” of “Bad Checks over
10,000.00” and sentenced to “10 years - PFO - 2[.]” The petition indicates that he pleaded guilty
and that he did not file an appeal from the judgment of conviction. It further shows that Balcar
did not file any post-conviction motion in state court challenging his conviction. Balcar filed the
instant petition for writ of habeas corpus in this Court on January 10, 2017.1
II. ANALYSIS
Because Balcar’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the provisions of the
1

Under the mailbox rule, the petition is deemed filed on the date it was presented to prison officials for
mailing. Miller v. Collins, 305 F.3d 491, 497-98 (6th Cir. 2002) (citing Houston v. Lack, 487 U.S. 266 (1988)).

AEDPA apply. Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000). The AEDPA sets
forth a statute of limitations for state prisoners seeking release from custody. The statute
provides as follows:
(d)(1) -- A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a
State court. The limitation period shall run from the latest of:
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d)(1) and (2).
In the present case, Balcar did not file a direct appeal of his conviction. Therefore, the
one-year limitations period began to run at “the expiration of the time for seeking such review.”
28 U.S.C. § 2244(d)(1)(A). Assuming for the purposes of this preliminary screening that Balcar
was convicted on December 31, 2013, his conviction became final on January 30, 2014, at the
expiration of the thirty-day period for filing an appeal. See RCr 12.04. Thus, Balcar had until
January 30, 2015, to file a petition for writ of habeas corpus in this Court unless there was a
time-tolling collateral attack pending in state court. Payton v. Brigano, 256 F.3d 405, 408

2

(6th Cir. 2001) (holding that the one-year statute of limitations may be tolled “for that amount of
time in which ‘a properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending.’”) (quoting 28 U.S.C. § 2244(d)(2)).
Balcar did not file the instant habeas petition until January 10, 2017, almost two years after the
statute of limitations expired, nor did he have any time-tolling collateral action pending in state
court during that time period.
A review of the Court’s records reveals that Balcar filed a previous habeas corpus action
under 28 U.S.C. § 2241 challenging the same 2013 conviction which he challenges here. Balcar
filed that petition on September 30, 2016. The Court dismissed the § 2241 action without
prejudice on the basis that Balcar should have sought habeas relief under § 2254. However, even
if the Court were to calculate the statute of limitations based on the filing of Balcar’s § 2241
action, that action was still filed more than a year and a half after the statute of limitations
expired.
In any event, Balcar’s habeas corpus action was filed after the expiration of the statute of
limitations and appears to be time-barred and subject to summary dismissal.
Section 2254’s statute of limitations is not jurisdictional, however, and is subject to
equitable tolling. See Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001). The Sixth
Circuit has repeatedly cautioned that equitable tolling should be applied “sparingly.” Id. at
1008-09. A litigant “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, 649 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). “The [movant] bears the burden of demonstrating that
he is entitled to equitable tolling.” McClendon v. Sherman, 329 F.3d 490, 494-95 (6th Cir. 2003)

3

(citing Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002)). Ignorance of the law alone does not
excuse prompt filing. Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004).
In response to the Show Cause Order, Balcar contends that he has been pursuing his
rights diligently through the Jefferson County Circuit Court, the “Jefferson County DPA
Office[,]” and Laurel County. He also argues that extraordinary circumstances stood in his way
“because he has no money for a Attorney and because he was a prisoner no lawyer would help
him in filing a appeal or any legal work to prevented timely filing.” Balcar also maintains that
he “was in segregated housing in 2014, 2015 and part of 2016, and was inability to file timely
and could not get the law books or legal aid.”
However, Balcar fails to meet his burden of demonstrating that he is entitled to the
extraordinary remedy of equitable tolling. Whether or not he can establish that he was pursuing
his rights diligently, Balcar fails to demonstrate that extraordinary circumstances prevented him
from timely filing his habeas petition. His poverty, inability to obtain an attorney, and inability
to receive law books or legal aid in segregated housing are not unique to inmates pursuing
habeas relief and do not constitute extraordinary circumstances justifying the application of
equitable tolling. See Griffin v. Rogers, 399 F.3d 626, 637 (6th Cir. 2005) (recognizing that
ignorance of the law alone does not warrant equitable tolling); Price v. Jamrog, 79 F. App’x 110,
112 (6th Cir. 2003) (recognizing that “ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing”) (quoting Fisher v. Johnson, 174 F.3d 710,
714 (5th Cir. 1999)); Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) (concluding that, “while
pro se litigants may be entitled to some latitude when dealing with sophisticated legal issues . . .,
there is no cause for extending this margin to straightforward procedural requirements that a
layperson can comprehend as easily as a lawyer”); Nhan Hoang Le v. Harrington, No. SACV

4

10-1825-ODW (MAN), 2011 U.S. Dist. LEXIS 97360, at *20-21 (C.D. Cal. July 20, 2011) (“[A]
lack of legal training and financial resources, unfortunately, tend to be constant, unchanging facts
of life for most prisoners, a finding that these circumstances are ‘extraordinary,’ in spite of their
pervasiveness, would create the potential for endless tolling . . . .”).
For these reasons, the Court concludes that Balcar is not entitled to equitable tolling and
that this action is untimely. By separate Order, the Court will dismiss this action.
III. CERTIFICATE OF APPEALABILITY
In the event that Balcar appeals this Court’s decision, he is required to obtain a certificate
of appealability. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). A district court must issue
or deny a certificate of appealability and can do so even though the petitioner has yet to make a
request for such a certificate. Castro v. United States, 310 F.3d 900, 903 (6th Cir. 2002).
When a district court denies a petition on procedural grounds without addressing the
merits of the petition, a certificate of appealability should issue if the petitioner shows “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a
plain procedural bar is present and the district court is correct to invoke it to dispose of the
matter, a reasonable jurist could not conclude either that the court erred in dismissing the motion
or that the petitioner should be allowed to proceed further. Id. at 484. In such a case, no appeal

5

is warranted. Id. This Court is satisfied that no jurists of reason could find its procedural ruling
to be debatable. Thus, no certificate of appealability is warranted in this case.
Date:

cc:

September 22, 2017

Petitioner Balcar, pro se
Respondent
Attorney General, Commonwealth of Kentucky, Office of Criminal Appeals, 1024 Capital Center Drive,
Frankfort, KY 40601

4414.010

6