Propotnik v. Minn. Dept. of Corrections et al
Filing
25
ORDER denying 24 Motion for Reconsideration and Evidentiary Hearing (Written Opinion). Signed by Judge Patrick J. Schiltz on March 20, 2015. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
LARRY R. PROPOTNIK,
Case No. 14‐CV‐3799 (PJS/JJK)
Petitioner,
v.
ORDER
MINN. DEPT. OF CORRECTIONS; TOM
ROY, Commissioner, MCF‐RC;
WARDEN STEVE HAMMER,
Respondents.
Larry R. Propotnik, pro se.
Matthew Frank and James B. Early, MINNESOTA ATTORNEY
GENERAL’S OFFICE; and Timothy Charles Nelson, ISANTI COUNTY
ATTORNEY’S OFFICE, for respondents.
The Court recently dismissed petitioner Larry Propotnik’s 28 U.S.C. § 2254
habeas petition as time‐barred. ECF No. 22. This matter is before the Court on
Propotnik’s motion for reconsideration and an evidentiary hearing, which the Court
construes as a motion for relief from judgment under Fed. R. Civ. P. 60(b). So
construed, the motion is denied.
There is no dispute that Propotnik filed his § 2254 petition long after the one‐year
statute of limitations had expired. See 28 U.S.C. § 2244(d)(1). The Court rejected
Propotnik’s arguments in favor of equitably tolling the limitations period, finding that
(1) the mistreatment by prison officials that allegedly prevented Propotnik from filing a
§ 2254 occurred mainly before the limitations period began or after it had expired;
(2) despite the alleged mistreatment, Propotnik was able to take an active part in
litigating his direct appeal; and (3) Propotnik had not been diligent in pursuing his
rights. See Johnson v. Hobbs, 678 F.3d 607, 610 (8th Cir. 2012) (for equitable tolling to
apply, petitioner must show that he has diligently pursued his rights and some
extraordinary circumstance stood in his way).
In his latest motion, Propotnik contends that the Court erred in finding that the
mistreatment occurred outside of the limitations period and contends that he was
mistreated throughout his time in prison. The fact remains, however, that Propotnik
did not diligently pursue his rights. Even if the alleged mistreatment prevented him
from filing while he was in prison, he could have sought habeas relief while he was on
supervised release for nearly eight months in 2013. ECF No. 24 at 7 (Propotnik was on
“intensive supervised release” from January 7, 2013, through August 29, 2013); cf. Jones
v. Jerrison, 20 F.3d 849, 852 n.2 (8th Cir. 1994) (a parolee is still “in custody” within the
meaning of § 2254 and can seek habeas relief under that provision).
Propotnik contends that he was not allowed to file writs while on supervised
release, but he also admits that he was permitted to leave the facility in which he was
housed for four hours each weekday. Propotnik’s complaint that the lack of readily
available transportation made it difficult for him to get to a law library is not the sort of
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extraordinary circumstance that warrants equitable tolling. Cf. Kreutzer v. Bowersox, 231
F.3d 460, 463 (8th Cir. 2000) (“Even in the case of an unrepresented prisoner alleging a
lack of legal knowledge or legal resources, equitable tolling has not been warranted.”).
Propotnik’s failure to seek habeas relief during his eight months of supervised release
establishes that he did not diligently pursue his rights. See Earl v. Fabian, 556 F.3d 717,
724‐25 (8th Cir. 2009) (petitioner failed to act diligently where, despite having eight
months to file a timely petition after receiving belated notice that his conviction was
affirmed, he failed to take action). Propotnik’s motion for reconsideration is therefore
denied.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1.
Petitioner’s motion for reconsideration and evidentiary hearing [ECF
No. 24] is DENIED.
2.
No certificate of appealability will issue.
Dated: March 20, 2015
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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