Radcliff v. King et al
Filing
18
AMENDED ORDER granting 7 Motion to Dismiss as set out in the order. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on September 9, 2011.(SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
NIKALAY RADCLIFF, #R3354
VS.
PETITIONER
CIVIL ACTION NO.: 4:10cv193-DPJ-FKB
SUPERINTENDENT RON KING, ET AL.
RESPONDENTS
AMENDED OPINION AND ORDER
This matter is before the Court on Respondents’ Motion to Dismiss Pursuant to § 2244(d)
(Docket No. 7) and Petitioner’s “Motion to Amend Response to Respondent’s Motion for
Dismissal” (Docket No. 8), which the Court interprets as a response to the Motion to Dismiss. In
his response and a separate motion Docket No. 9, Petitioner alleges that various State-created
impediments prevented him for over ten years from making a filing that would have tolled the
one-year statute of limitations under § 2244(d).
In an effort to develop the facts concerning Petitioner’s allegations, the Magistrate Judge
ordered Respondents to submit to the Court and serve upon Petitioner affidavits or other
evidentiary materials relevant to this issue, and to provide information concerning the legal
assistance available to Petitioner between March 9, 1999, to March 9, 2000.1 See Order, Docket
No. 10. The State filed a response to the Order at Docket No. 13, and Petitioner filed a response
in opposition thereto at Docket No. 14. For the reasons explained below, the Court finds that
Petitioner has failed to show an entitlement to any tolling to render timely his petition filed more
than ten years after the statute of limitations expired. Accordingly, the Court finds that the
Motion to Dismiss should be granted.
1
As explained infra, without the benefit of tolling, Radcliff’s federal statute of limitations
expired on March 9, 2000. Petitioner filed his action on or about November 10, 2010.
I.
FACTS AND PROCEDURAL HISTORY
On November 20, 1997, Petitioner Nikalay Radcliff was convicted of one count of rape
in the Circuit Court of Lauderdale County, Mississippi. Docket No. 7–1 at 1. The same jury
acquitted Radcliff on a kidnaping charge. Id. On December 22, 1997, the trial court judge
sentenced Radcliff to twenty-five (25) years in the custody of the Mississippi Department of
Corrections. Radcliff appealed his conviction and sentence to the Mississippi Supreme Court,
and on February 23, 1999, the Mississippi Court of Appeals affirmed the judgment of the trial
court in a written opinion. See Radcliff v. State, 736 So. 2d 1081 (Miss. Ct. App. 1999) (Cause
No. 97-KA-01643-COA); Docket No. 7–2. Radcliff did not file a motion for rehearing in the
Mississippi Court of Appeals, nor did he file a petition for writ of certiorari to the Mississippi
Supreme Court.2 Accordingly, the one-year federal statute of limitations began to run on March
9, 1999, and, without the benefit of tolling, it expired March 9, 2000, over ten years before
Radcliff filed his petition for habeas relief in this Court on or about November 10, 2010.
With its Motion, the State presents records from the Mississippi Supreme Court showing
that while Radcliff filed three separate applications to proceed in the trial court with a motion for
Post-Conviction Relief (“PCR”), these were all filed outside the one-year limitations period for
2
A prisoner who fails to seek discretionary review from the state’s highest court does not
receive the benefit of the ninety-day period for seeking certiorari from the United States
Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693–94 (5th Cir. 2003). Thus, for a prisoner
who stops his appeal process at the Mississippi Court of Appeals, a conviction becomes final
when the time for seeking review from the Mississippi Supreme Court expires. Pursuant to
Mississippi Rule of Appellate Procedure 17(b), the time for seeking review from the Mississippi
Supreme Court expires within fourteen days of the entry of judgment by the Court of Appeals, or
the disposition of a petition for rehearing by that court. In Radcliff’s case, the Mississippi Court
of Appeals affirmed his judgment of conviction on his direct appeal on February 23, 1999.
Therefore, his judgment of conviction became final fourteen days later on March 9, 1999.
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federal habeas relief that expired March 9, 2000, and therefore these filings did not toll the
federal statute of limitations. Radcliff filed his first application for PCR on July 31, 2001, and it
was denied on March 14, 2002. Docket No. 7–3; State’s Exhibit C. He filed his second
application for PCR on September 18, 2006, and it was denied on October 12, 2006. Docket
Nos. 7–4, 7–5; State’s Exhibits D and E. Radcliff filed another application for PCR on
December 1, 2006, which was denied by the Mississippi Supreme Court by order filed March 29,
2007. Docket No. 7–6; State’s Exhibit F. The State argues that these filings were incompetent
to toll the federal habeas statute of limitations, thus, Radcliff’s federal habeas petition is
untimely.
From August 3, 1998 to October 28, 2003, Radcliff was housed at Wilkinson County
Correctional Facility (“WCCF”). Docket No. 13–1, Exhibit A (“Drill Down Detail Report”) at
1. In his response to the State’s Motion, Radcliff alleges that the State created an “impediment
to any correct and prompt filing to toll 2244(d) statute of limitation” due to WCCF “remov[ing]
all hardback library books in preparation for Mississippi Inmate legal assistance program.”
Docket No. 8 at 1.
In addition to the issues at WCCF, Radcliff claims the State-created impediments to his
timely filing a federal habeas petition at every other facility in which he was housed for the next
seven years. Specifically, Radcliff alleges the following impediments at the following facilities:
1.
Kemper County Correctional Facility (“KCCF”), “2003 till 2006”— “no form of
legal assistance program nor any means to access to the courts”;
2.
Marshall County Correctional Facility, “2006”— “law librarian . . . [was] not a
person trained in law”;
3.
Mississippi State Penitentiary at Parchman, “February, 2007 to Oct. 2009”—
“housed in ‘close confinement common labor’ . . . [and] . . . not given adequate
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access to the courts due to common labor field operations start[ing] at 6:30 a.m.
and . . . prisoners [being] . . . spread[] out across the Mississippi State Penitentiary
working so they are never called for legal assistance”;
4.
Winston County Correctional Facility, transferred in “Oct. 2009”— “no law
library or legal assistance”; and
5.
WCCF, transferred in “February 2010”— “law librarian was not a person trained
in law . . . .”
Docket No. 8 at 2–4. On August 4, 2010, Radcliff was transferred to South Mississippi
Correctional Institution, and without explanation, he asserts that the “state impediment was
removed” at that time. Over three months later, on or about November 10, 2010, Petitioner filed
his federal habeas petition.3 Docket No. 1.
After this Court ordered the State to submit evidence addressing legal materials available
to Petitioner during the statutory limitation period under § 2244—March 9, 1999, to March 9,
2000 (see Docket No. 10)—the State filed an affidavit from Gia N. McLeod, Director of the
Inmate Legal Assistance Program (“ILAP”) for the Mississippi Department of Corrections.
Docket No. 13–2. According to Ms. McLeod’s sworn testimony, “[t]he Inmate Legal Assistance
Program (ILAP) was established in September 1997 by [a] United States District Court order
doing away with the then existing book law libraries and going to the new ILAP office.” Id. at 1.
She further provides that “at all times during 1999, Wilkinson County Correctional Facility had
3
“For pleadings submitted by prisoners acting pro se, the Fifth Circuit has recognized that
a ‘mailbox rule’ applies and that the date when prison officials receive the pleading from the
plaintiff for delivery to the court is considered the time of filing for limitations purposes.
Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995). It may reasonably be inferred that a
prisoner delivered his petition to the prison officials for mailing on the date he signed it. See
United States v. O’Kaine, 971 F. Supp. 1479, 1480 (S.D. Ga. 1997).” Punch v. State of
Louisiana, No. Civ. A. 98-2867, 1999 WL 562729, at *2 n.3 (E.D. La. July 29, 1999).
Accordingly, this Court will infer that Radcliff delivered his petition to prison officials for
mailing on November 10, 2010, the date on which he signed the petition.
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an attorney on contract to assist inmates who had legal questions . . . [and that WCCF inmates
could contact the attorney] by putting in a request to see him.” Id. Specifically addressing the
“time in question, March 9, 1999, to March 9, 2000,” Ms. McLeod testifies that “any inmate
requesting services or information that could not be provided by the Inmate Legal Assistance
program at WCCF were asked to be directed to the ILAP office at Central Mississippi
Correctional Facility or the attorney for Wilkinson County Correctional Facility.” Id. As Ms.
McLeod explained, “all ILAP offices were instructed to provide all relevant statues [sic] and
rules when an inmate requested court generated forms for filing, if they were not already
providing that information[,] [and] [t]his included the AEDPA with habeas corpus forms.” Id. at
2.
In addition, Ms. McLeod testifies in her affidavit about an “informational packet” which
advised inmates of statutory deadlines for filing post-conviction petitions. Id. She admits that,
prior to being revised in 2000, the packet contained “confusing language.” Id. Specifically, she
explained that, although the pre-2000 packet stated that the “time for filing a habeas corpus
began running upon affirmation of the conviction, it then stated that [inmates] had three years to
file a state post conviction petition and upon completion of their state remedies, they had one
year to file a habeas corpus.”4 Id.
The State also submitted an affidavit from J. Anthony Williams. Docket No. 13–3. Mr.
Williams was the “contract attorney for the Wilkinson County Correctional Facility[,]” starting
4
This language was “confusing” because an inmate could file a timely post-convictionrelief petition in state court, but if he filed it more than one year after his judgment of conviction
became final, it would not toll the one-year limitation under § 2244. Thus, in the absence of
another statutory-tolling provision, or other relief, his federal habeas petition filed upon
completion of such a state-PCR proceeding would be barred as untimely.
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in 1998 and ending on January 31, 2002. Id. ¶ 2. According to his affidavit, Mr. Williams’s
primary duties were “to do legal research for inmates, to answer questions they may have about
legal issues, and if the inmate requested, to review pleadings they had drafted or had filed against
them.” Id. ¶ 3. He explains that through “a face-to-face interview or by writing [him] a letter[,]”
“an inmate could request federal law materials (cases, statutes, rules of court, etc.) from [him].”
Id. ¶ 4. And he specifically testifies that his duties and services “extended principally to an
inmate’s post-conviction petition, his habeas petition, and issues concerning conditions of
confinement.” Id. (emphasis added).
In addition to the services he personally provided at WCCF from 1998 to January 31,
2002, Williams discusses other ways in which WCCF made federal legal materials available to
inmates. Specifically, he testifies that “[a]t some point during this time period, WCCF also
allowed inmates to request federal law research materials by mail from the Central Mississippi
Correctional Facility in Rankin County or from Corrections Corporation’s Delta Facility in
Greenwood, MS.” Id. ¶ 5. Further, he testifies that, “[a]t some point during this time period,
WCCF installed one or more computers in its facility to allow inmates to [conduct] computerized
legal research[,] [and] [t]herefrom, inmates could access federal law research materials.” Id. ¶ 6.
Radcliff responded with his own affidavit stating that he “filed grievances to the warden
about the law library [at WCCF] and was told Inmate Legal Assistance program would be
coming soon.” Docket No. 14 at 22. But he testifies that ILAP “was never forthcoming without
the aid of Mr. Ronald Welch Former prison Advocate.” Id. According to Petitioner’s affidavit,
“Mr. Welch filed repeated complaints against [the WCCF law librarian] about the inadequacy of
the law library[,]” and, as a result, “[i]n 2001 Wilkinson County brought in a (woman) lawyer or
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paralegal . . . to help prisoners.” Id. He testifies that “the woman lawyer or paralegal never
provide[d] [him] with the ‘PCR’ informational packet” and that he was “never advised to any
deadline or as to what a Habeas corpus was.” Id. at 22–23. In his affidavit, Radcliff denies
having any knowledge of “an attorney at Wilkinson County by the name of J. Anthony
Williams” and denies having ever been “informed that [he] could request any form of legal
material from C.M.C.F. or Greenwood Delta Facility by memo or verbally.” Id. at 23.5
II.
DISCUSSION
The issue is timeliness. Section 2244(d), as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 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
5
Petitioner also submitted an affidavit from Arthur R. Thomas who was housed at WCCF
in 1999. According to Mr. Thomas’s affidavit, prisoners were never “informed [they] could
receive legal materials from C.M.C.F. or Greenwood Corr. Facility by memo or verbally;” and
he denies “knowledge of any attorney name[d] J. Anthony Williams providing legal service to
prisoners.” Docket No. 14 at 20.
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(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 post-conviction 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) (1996).
The AEDPA imposes a one-year statute of limitations for the filing of a federal habeas
petition. Although Radcliff asserts that the statute of limitations should be tolled because of
alleged state-created impediments, the Court finds, for the reasons explained below, that he is
not entitled to tolling for his petition filed over ten years after the federal statute of limitations
expired.
As stated above, Radcliff’s judgment of conviction became final on March 9, 1999, when
he declined to file a motion for rehearing in the Mississippi Court of Appeals, and he failed to
petition the Mississippi Supreme Court for discretionary review. Radcliff did not “properly file”
a state motion for post-conviction relief to toll the running of the one-year federal statute of
limitations for habeas relief. Nevertheless, Radcliff argues that he is entitled to equitable and/or
statutory tolling due to alleged inadequacies of, or lack of access to, a law library or legal
assistance at five different correctional facilities over a period of eleven years and five months,
thereby resulting in his alleged lack of knowledge of the AEDPA one-year statute of limitations
and a denial of his access to courts.
A.
Equitable Tolling
With respect to equitable tolling, the Fifth Circuit has held that an inadequate law library,
ignorance of the law, or lack of legal assistance do not constitute “rare and exceptional”
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circumstances that warrant equitable tolling of the AEDPA limitations period. See Scott v.
Johnson, 227 F.3d 260, 263 n.3 (5th Cir. 2000) (“We note that an inadequate law library does
not constitute a ‘rare and exceptional’ circumstance warranting equitable tolling.”); Felder v.
Johnson, 204 F.3d 168, 172 (5th Cir. 2000) (holding that pro se litigant’s “mere ignorance of the
law or lack of knowledge of filing deadlines does not justify equitable tolling . . . .”); Turner v.
Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (analyzing equitable tolling in habeas case and
stating that “neither a plaintiff’s unfamiliarity with the legal process nor his lack of
representation during the applicable filing period merits equitable tolling”). Thus, Radcliff has
failed to show “rare and exceptional circumstances” justifying equitable tolling.
B.
Tolling Pursuant to 28 U.S.C. § 2244(d)
Although Radcliff sometimes refers to “equitable tolling” in his filings, he actually
attempts to show an entitlement to statutory tolling under § 2244(d)(1)(B)6 and cites Egerton v.
Cockrell, 334 F.3d 433 (5th Cir. 2003). See Docket No. 14 at 1, 5. In Egerton, the Fifth Circuit
held that, “to invoke § 2244(d)(1)(B), the prisoner must show that: (1) he was prevented from
filing a petition (2) by State action (3) in violation of the Constitution or federal law.” Egerton v.
Cockrell, 334 F.3d at 436.
6
The statute states:
The limitation period shall run from the latest of. . . .(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 such State action.
28 U.S.C. § 2244(d)(1)(B).
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Before addressing Radcliff’s allegations that State-created impediments prevented his
access to the AEDPA, the Court notes that Petitioner has received physical access to the courts.
First, the docket of this Court shows that on January 14, 1999—while housed at WCCF—
Radcliff filed a lawsuit under 42 U.S.C. § 1983. See Radcliff v. Sollie, Civil Action No. 4:99cv8TSL-AGN. In fact, during the applicable AEDPA limitations period (March 9, 1999, to March
9, 2000), Radcliff actually prosecuted his § 1983 action by filing motions, responding to court
orders, and participating in an Omnibus Hearing. See id. Second, Radcliff filed a petition for
PCR in state court on July 31, 2001, while he was housed at WCCF. He filed two (2) more
petitions for PCR on September 18, 2006, and December 1, 2006, respectively, while housed at
Marshall County Correctional Facility. Thus, no State-created impediment prevented Radcliff
from filing petitions in federal or state court during the AEDPA limitations period or later.
Additionally, Radcliff has failed to prove any State-created impediment that prevented
access to the AEDPA or knowledge of its one-year statute of limitations. As stated above,
Radcliff relies on Egerton. In Egerton, the petitioner was incarcerated and his conviction
became final before April 24, 1996, the effective date of the AEDPA. Egerton, 334 F.3d at 435.
Although Egerton’s federal habeas petition was untimely, he asserted that the facilities in which
he was housed failed to provide a copy of the AEDPA or make other arrangements to place
inmates on notice of the new one-year limitations period under AEDPA. After being given the
opportunity to rebut Egerton’s assertion, “the State did not avail itself of this opportunity to
provide . . . any evidence whatsoever that a copy of AEDPA was available to Egerton during the
limitations period, nor [that] . . . the AEDPA was available” at the facilities in which Egerton
was housed. Id. at 438. The Fifth Circuit held that the complete absence of a copy of the
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AEDPA in a prison facility “without some . . . alternative arrangements” to make the necessary
AEDPA information “available” to prisoners may be considered an “impediment” under §
2244(d)(1)(B) and that the specific facts of Egerton’s case warranted statutory tolling. Id. at
438–39.
The facts of Egerton are starkly and materially different from this case. First, Radcliff
finds a State-created impediment in Ms. McLeod’s admission that the pre-2000 “informational”
or “post-conviction” packet available to MDOC inmates contained “confusing” language.
Docket No. 14 at 1–2, 4. But the argument weakens his case. Although the language in the
packet was “confusing” (and possibly misleading) as to when the one-year AEDPA statute of
limitations began to run or was tolled, it clearly advised inmates that the AEDPA contained a
one-year limitations period. Thus, if Radcliff read the materials and was confused, then he was
also on notice of the one-year limitations period. And because Radcliff filed only one timely
state-court PCR petition, which was denied on March 14, 2002, Radcliff’s federal habeas
petition would have been due (if he had been misled by the“confusing” language) on March 14,
2003. Nevertheless, Radcliff waited until November 10, 2010, to file his federal habeas petition.
Radcliff’s case differs from Egerton in other ways as well. In Egerton, there was no
access to the AEDPA—and no alternatives means for acquiring that information—for the full
eighteen months Egerton’s filing was delinquent. By contrast, Radcliff had access to the
AEDPA through the Inmate Legal Assistance Program (ILAP) of the Mississippi Department of
Corrections. See Townsend v. Epps, Cause No. 2:06cv199-M-A, 2007 WL 1687461 at *3 (N.D.
Miss. June 8, 2007) (inmates in custody of Mississippi Department of Corrections have access to
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the AEDPA and other legal materials through the Inmate Legal Assistance Program); Jones v.
King, Cause No. 3:05cv356-B-S, 2006 WL 1674302 at *4-6 (S.D. Miss. June 16, 2006) (same);
Neal v. Bradley, Cause No. 2:05cv67-M-B, 2006 WL 2796404 (N.D. Miss. Sept. 25, 2006)
(same).
In the affidavit of Gia McLeod submitted by the State in this case, she testifies that “[t]he
Inmate Legal Assistance Program (ILAP) was established in September 1997,” that is, prior to
Radcliff’s incarceration and prior to his conviction becoming final. As a Mississippi federal
district court has explained:
all . . . inmates in the custody of the Mississippi Department of Corrections . . .
have access to legal materials through the Inmate Legal Assistance Program. . . .
All inmates are provided with a handbook upon entry into the Mississippi
Department of Corrections; the handbook sets forth, among other things, the
operation of the Inmate Legal Assistance Program, what assistance is provided,
and how to get help from the program. Inmates are issued a new handbook after
each revision. They receive guidance from the Inmate Legal Assistance Program
by submitting a request form. The request need not be specific; a general request
seeking assistance will result in a conference to determine the stage of the case
and the next step.
.
.
.
.
The post-conviction packet (approximately 140 pages) contains information
regarding the state court post-conviction remedy (with supporting statutes) and
“A Basic Explanation of the Appeals Process,” which summarizes state court
remedies as well as a brief overview of federal habeas, including a discussion of
the one-year statute of limitations period of the AEDPA. The post-conviction
packet is available to all inmates upon request.
Neal, 2006 WL 2796404 at *3–4 (emphasis in original).
Ms. McLeod also affirmed that during the pertinent one-year limitations period, AEDPA
and habeas forms were available to WCCF inmates through the ILAP program and WCCF had
an attorney on contract who was available to meet with WCCF inmates upon their request. See
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Docket No. 13–2. The WCCF contract attorney, J. Anthony Williams, confirmed in his affidavit
that he was available to WCCF inmates during this time period through “face-to-face” meetings
and correspondence to do legal research, answer questions and review pleadings regarding
various matters, including habeas matters. See Docket No. 13–3. He also testified that, “[a]t
some point” prior to January 31, 2002 (i.e., more than eighteen months before Radcliff was
transferred), WCCF made federal law research materials available to inmates through computers
installed at WCCF. Id.
In response, Radcliff fails to show that the AEDPA and information regarding the
AEDPA one-year limitations period were not available to WCCF inmates. Instead, he asserts
that he was never “informed that [he] could request” such materials and that he has no
knowledge of “an attorney at Wilkinson County by the name of J. Anthony Williams.” See
Docket No. 14 at 23. As for the ILAP at WCCF, he claims that he “filed grievances to the
warden about the law library and was told Inmate Legal Assistance program would be coming
soon.” Id. at 22. Radcliff submits no documentary evidence of any such “grievances.”
Even if all of this is true, Radcliff essentially admits that the ILAP was “forthcoming”
after the efforts of Ronald Welch, a prisoner advocate, and that, by 2001, WCCF “brought in a . .
. lawyer or paralegal . . . to help prisoners.” Id. Although he denies that he was ever advised of
the AEDPA limitations period, he admits that he received at least some legal assistance as he
filed his first state court PCR petition on July 31, 2001, while housed at WCCF. Id. at 3.7 See
Krause v. Thaler, 637 F.3d 558, 562 (5th Cir. 2011) (finding no “state action” and distinguishing
7
Of course, Radcliff had already litigated a § 1983 action in federal court from January
14, 1999, to March 30, 2000. Therefore, the evidence indicates that he had already received
legal assistance prior to July 31, 2001, and as early as 1999.
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Egerton because, among other things, petitioner had access to “law librarian”). Radcliff likewise
fails to refute that federal legal materials became available to WCCF inmates through
computerized legal research eighteen months before he was transferred. In sum, even if the
Court were to toll the AEDPA limitations period until the latest of these events at WCCF
occurred, Radcliff’s federal habeas petition would still be more than eight years overdue. These
facts distinguish Egerton.
But Radcliff’s problems do not stop there. To reap the benefits of Egerton, Radcliff must
prove a State-created impediment for the full term of his delinquency, including his stints at
other facilities. He cannot. Even if the Court were to toll the limitations period for the entire
time Radcliff was at WCCF and KCCF, he still has not proven an entitlement to statutory tolling
through August 4, 2010 (approximately seven years later), when he was transferred to South
Mississippi Correctional Institution.
For example, Radcliff’s response to the State’s Motion fails to acknowledge his term of
incarceration at the Mississippi State Penitentiary at Parchman from August 4, 2005, to May 22,
2006. See Docket No. 13–1 at 1. Mississippi federal district courts have held that the AEDPA is
available to inmates at Parchman. See Neal, 2006 WL 2796404 at *4; Jones, 2006 WL 1674302
at *6. But for this over-nine-month period, Radcliff offers no evidence of any alleged Statecreated impediment. See Krause, 637 F.3d at 562 (rejecting Egerton argument related to one
facility’s law library noting that petitioner was housed in other facilities for which he made no
showing of a State impediment). Radcliff has shown no entitlement to statutory tolling for this
period, and even if the AEDPA limitations period were gratuitously tolled until he arrived at
Parchman in August 2005, his federal habeas petition was still five years and three months late.
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As for his other term at the Mississippi State Penitentiary at Parchman from February 23,
2007, to October 8, 2009 (which he acknowledged), Radcliff claims that he was “housed in
‘close confinement common labor’ [or c-custody status] . . . [and] . . . not given adequate access
to the courts due to common labor field operations start[ing] at 6:30 a.m. and . . . prisoners
[being] . . . spread[] out across the Mississippi State Penitentiary working so they are never
called for legal assistance.” Docket No. 8 at 3. He fails to offer any grievances from that period
to substantiate his claims that he had no access to legal materials, nor does he offer any ILAP
form requests that were denied. Radcliff simply has not demonstrated that he was denied access
to legal materials or assistance every day, seven days a week, for nearly three years. Regardless,
in Neal, Judge Mills rejected a prisoner’s attempt to use his security classification at Parchman
as justification for a State-created impediment under § 2244(d)(1)(B). Neal, 2006 WL 2796404
at *2. Likewise, this Court rejects Radcliff’s attempt to do the same in this case.8
Although pro se pleadings are broadly construed, the Court rejects Petitioner’s argument
that he was unable to gain access to legal materials, through any means. His own statements
indicate that access eventually existed at WCCF, he fails to account for all of his terms of
incarceration after leaving WCCF, and he fails to offer documentary evidence supporting an
impediment at each facility during the lengthy delinquency. Thus, Radcliff is not entitled to
8
Although the Fifth Circuit does not appear to have addressed the argument, other courts
distinguish Egerton on another applicable basis. Egerton was incarcerated when the AEDPA
became effective, and the law library had no copy of the new law for the eighteen months before
Egerton filed his federal petition. Here, Radcliff was incarcerated after Congress enacted the
AEDPA and contends that he did not learn of the limitations period for over ten years at five
different facilities. See, e.g., Lewis v. Quartermon, 2009 WL 1883424, Nos. 3:08-cv-1753-P,
3:08-cv-1756-P at *4 (N.D. Tex. June 30, 2009) (distinguishing Egerton because petitioner was
incarcerated after AEDPA passed); Heatherly v. Banks, 2007 WL 2071801, No. 3:07cv23-B-A
at *4 (N.D. Miss. July 17, 2007) (same).
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statutory tolling, and his habeas petition, filed over ten years beyond the expiration of the federal
statute of limitations, is untimely.
III.
CONCLUSION
For the reasons stated above, Petitioner is not entitled to equitable or statutory tolling of
the federal statute of limitations for habeas corpus petitions. Therefore, the Respondents’
Motion to Dismiss is granted, and this case is dismissed with prejudice.
SO ORDERED AND ADJUDGED this the 9th day of September, 2011.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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