Sutherland v. Smith

Filing 11

MEMORANDUM OPINION by Chief Judge Joseph H. McKinley, Jr. on 6/22/2017: The Court will dismiss this action as time-bared. A certificate of appealability must be denied. The Court will enter an order consistent with this Memorandum Opinion. cc: Petitioner (pro se), Respondent, Atty General (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
ROY LUKE SUTHERLAND, JR.

PETITIONER

v.

CIVIL ACTION NO. 3:17-CV-P111-JHM

WARDEN AARON SMITH

RESPONDENT
MEMORANDUM OPINION

Petitioner Roy Luke Sutherland, Jr., filed this pro se action pursuant to 28 U.S.C. § 2254
seeking a writ of habeas corpus (DN 1). The matter is currently before the Court for preliminary
consideration under Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts. On May 11, 2017, the Court directed Petitioner to show cause why his petition
should not be denied and his action dismissed as untimely (DN 9), and Petitioner has now
responded (DN 10). For the reasons set forth below, the Court will dismiss this action as timebarred.
I.
On November 30, 1979,1 Petitioner pled guilty to murder and rape in the first degree and
was sentenced to life imprisonment plus 40 years in Jefferson Circuit Court. Petitioner indicates
that he appealed these convictions to both the Kentucky Court of Appeals and the Supreme Court
of Kentucky, but he does not provide the dates these appeals were decided.2 Petitioner also
indicates that he filed a motion for relief from judgment pursuant to Rule 60.02 of the Kentucky
Rules of Civil Procedure in 2016. This motion and his accompanying request to proceed in
forma pauperis were denied by the Jefferson Circuit Court on June 3, 2016. The Kentucky Court
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Petitioner indicates on the petition form that he was convicted and sentenced by the Jefferson Circuit Court on
October 30, 1981, but the Circuit Court decision denying his Rule 60.02 motion, which Petitioner attached to his
petition, states that Petitioner pled guilty to murder and rape on November 30, 1979.
2
The dates Petitioner provides for his direct appeal actually appear to be the dates he appealed the Jefferson Circuit
Court’s decision denying his request to proceed in forma pauperis in relation to his Rule 60.02 motion.

of Appeals denied Petitioner’s appeal of the Circuit Court’s decision denying his motion to
proceed in forma pauperis on September 8, 2016, and his motion to reconsider this decision on
January 3, 2017.
Because the petition now before the Court was filed after April 24, 1996, the effective
date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the provisions of
the 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).
Generally, “[p]etitioners whose convictions became final prior to the effective date of
AEDPA, April 24, 1996, have one year from the effective date in which to file their petitions.”
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Searcy v. Carter, 246 F.3d 515, 517 (6th Cir. 2001); see also Bronaugh v. Ohio, 235 F.3d 280,
284-85 (6th Cir. 2000) (noting that prisoners convicted before AEDPA’s effective date had until
April 24, 1997, to file a federal habeas petition).
Here, Petitioner does not dispute that he was convicted of rape and murder more than 30
years ago. He first argues that his petition is not untimely because “the statute of limitations
applied in this case should not apply to the case from 1979 but should apply to the final action
taken before the trial courts in 2016.” However, the filing of a Rule 60.02 post-conviction
motion does not restart the one-year statute of limitations for filing a federal habeas petition.
Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003). While a collateral challenge to a state
conviction can toll the statute of limitations, “the tolling provision does not

. . . ‘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.” Id. at 602 (quoting Rashid v. Khulmann, 991 F.Supp. 254, 259
(S.D.N.Y 1998)) (internal quotation marks omitted). Thus, when Petitioner sought postconviction relief from the Jefferson Circuit Court in 2016, there was nothing left of the oneyear statute of limitations to toll. This argument is, therefore, without merit and, as such, the
Court finds that the petition is barred by AEDPA’s statute of limitations.
However, Petitioner also argues that that his petition should not be dismissed because he
is entitled to equitable tolling. A litigant “is ‘entitled to equitable tolling’ 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.

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2003) (citing Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002)). The Sixth Circuit has
repeatedly cautioned that equitable tolling should be applied “sparingly.” Id. at 1008-09.
Petitioner argues that he is entitled to equitable tolling because he has been transferred to
multiple institutions during the 38 years he has been incarcerated by the Kentucky Department of
Corrections. Petitioner states that as a result of these transfers, he has “handed his records to
over (15) legal aids who have also been transferred suddenly and without prior warning which
resulted in all the Petitioner’s legal files being sent as well.” He also states that he has been
placed in segregation over “20 times.” Petitioner continues: “Petitioner has taken every action
he could to recover his files and is still attempting recovery through the Jefferson County
Archives and Clerks of the Courts.” Petitioner reiterates that he had “no control of being
transferred all over Kentucky where his legal files are scattered accordingly.”
Courts have consistently held that general allegations of transfers, placement in
segregation, and lack of access to legal materials are not exceptional circumstances warranting
equitable tolling, especially where a petitioner does not sufficiently explain or present evidence
demonstrating why the circumstances he describes prevented him from timely filing a habeas
petition. See, e.g., United States v. Cicero, 214 F.3d 199, 205 (D.C. Cir. 2000) (deciding that, in
the context of a § 2255 petition, equitable tolling was not warranted where petitioner entrusted
his legal papers to another inmate who was placed in segregation, thus separating petitioner from
his own legal documents). Paulcin v. McDonough, 259 F. App’x 211, 213 (11th Cir. 2007)
(finding equitable tolling not warranted where petitioner alleged that he was denied access to the
law library and his legal records, but failed to show “how his inability to obtain legal materials
thwarted his efforts to file a timely federal proceeding”); United States v. Fredette, 191 F. App’x
711, 713 (10th Cir. 2006) (finding that petitioner was not entitled to equitable tolling of his

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§ 2255 petition, despite his transfer to as many as six different facilities, because even if
petitioner was denied access to legal materials in violation of his constitutional right of access to
the courts, he failed to show how the transfers affected his ability to file timely); Campbell v.
Roberts, 143 F. App’x 110, 113 (10th Cir. 2005) (finding that petitioner’s allegation of
inadequate access to legal materials was insufficient to account for the approximately five-year
delay in filing his petition); Warren v. Kelly, 207 F. Supp. 2d 6, 10 (E.D.N.Y. 2002) (“Transfers
between prison facilities, solitary confinement, lockdowns, restricted access to the law library
and an inability to secure court documents do not qualify as extraordinary circumstances.”).
In light of this jurisprudence and the fact that the statute of limitations in this case
expired approximately 20 years ago, the Court concludes that Petitioner has not demonstrated
grounds for equitable tolling and, therefore, holds that this § 2254 challenge to his convictions is
time-barred.
II.
Before Petitioner may appeal this Court’s decision, a certificate of appealability must
issue. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483 (2000).
When a district court denies a habeas 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. at 484. If the petition was
denied on procedural grounds, both showings must be made before a certificate of appealability

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should issue and the matter be heard on appeal. Id. “Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.” Id. In such a case, no appeal is warranted. Id.
The Court is satisfied in the instant case that no jurists of reason could find its procedural
ruling to be debatable. Thus, a certificate of appealability must be denied.
III.
The Court will enter an Order consistent with this Memorandum Opinion.
Date:

June 22, 2017

cc:

Petitioner, pro se
Respondent
Attorney General, Commonwealth of Kentucky, Office of Criminal Appeals, 1024 Capital Center Drive,
Frankfort, KY 40601
4414.011

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