Norvell v. Hart

Filing 5

MEMORANDUM OPINION by Senior Judge Thomas B. Russell on 3/31/2021. A separate order shall enter.cc:counsel, petitioner pro se (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
JAMES RAY NORVELL

PETITIONER

v.

CIVIL ACTION NO. 5:21-CV-P7-TBR

DE’EDRA HART

RESPONDENT
MEMORANDUM OPINION

Petitioner James Ray Norvell 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. For the reasons set forth below, the Court will dismiss this action as time-barred.
I.
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).
Petitioner indicates that he is challenging a conviction from the Carlisle Circuit Court of
three counts of non-forcible incest in Case No. 12-CR-00008. In the petition, he states that the
date of his conviction was May 4, 2020, and that the date of his sentencing was June 21, 2020.
However, the documents Petitioner attaches to his petition indicate that he entered a guilty plea
in his criminal case on May 3, 2012, and that he was sentenced on June 21, 2012. See, e.g.,
DN 1-2, p. 5, Kentucky Court of Appeals Order, Norvell v. Hart, 2019-CA-001779-MR (Ky. Ct.
App. Jan. 29, 2020). These attachments further show that he filed a “writ of habeas corpus” in
Carlisle Circuit Court on July 24, 2019; that the Carlisle Circuit Court denied the writ on
November 7, 2019; that the Kentucky Court of Appeals affirmed the circuit court’s denial of the
writ on January 29, 2020; and that the Kentucky Supreme Court denied discretionary review on
September 16, 2020.
Based on the dates set forth in the attachments, Petitioner’s conviction became final on
July 23, 2012, at the expiration of the thirty-day period for filing an appeal.1 RCr 12.04. This

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The thirtieth day actually ended on July 21, 2012. Because that date was a Saturday, the 30-day period ended on
the following Monday, July 23, 2012. See Fed. R. Civ. P. 6(a) (“The last day of the period so computed shall be
included, unless it is a Saturday, or Sunday, or a legal holiday ... in which event the period runs until the end of the
next day which is not one of the aforementioned days”).
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means that Petitioner had until July 23, 2013, to file the instant § 2254 petition, see 28 U.S.C.
§ 2244(d)(1)(A), unless there was a time-tolling collateral attack pending in state court. See
28 U.S.C. § 2244(d)(2); Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001). Petitioner states
that he did not file his state-court petition for a writ of habeas corpus until July 24, 2019, which
was long after the applicable one-year statute of limitations expired. The AEDPA limitations
period may be tolled for that period of time “during which a properly filed application for State
post-conviction relief or other collateral review with respect to the pertinent judgment or claim is
pending.” 28 U.S.C. § 2244(d)(2). “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.” Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (citation
omitted). For these reasons, the petition is time-barred under the statute.
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)
(citing Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002)). In light of this jurisprudence, the
Court entered a Memorandum and Order providing Petitioner the opportunity to show cause,
within 30 days, why his petition should not be summarily dismissed as barred by the applicable

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one-year statute of limitations. See Day v. McDonough, 547 U.S. 198 (2006). This Order
warned Petitioner that if he failed to file a timely response, his petition would be dismissed for
the reasons set forth herein. Petitioner did not file a response.
Thus, the Court concludes that the § 2254 petition must be denied and this action
dismissed as untimely.
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
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.

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III.
The Court will enter an Order consistent with this Memorandum Opinion.
Date:

March 31, 2021

cc:

Petitioner, pro se
Respondent
Attorney General, Commonwealth of Kentucky, Office of Criminal Appeals, 1024 Capital Center Drive,
Frankfort, KY 40601
4413.011

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