Hicks v. Lewis

Filing 8

MEMORANDUM AND ORDER re: 3 MOTION to Appoint Counsel filed by Petitioner Joseph J. Hicks. IT IS HEREBY ORDERED that petitioner's motion to proceed in forma pauperis [Doc. #7] is GRANTED. IT IS FURTHER ORDERED that petitioner's applicat ion for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 is DENIED AND DISMISSED as time-barred. Rule 4 of the Rules Governing Habeas Corpus Proceedings. IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability. See 28 U.S.C. § 2253. IT IS FURTHER ORDERED that petitioner's motion for appointment of counsel [Doc. #3] is DENIED AS MOOT. Signed by District Judge Jean C. Hamilton on 11/26/18. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JOSEPH J. HICKS,
Petitioner,
v.
JASON LEWIS,
Respondent.

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No. 1:18-CV-153 JMB

MEMORANDUM AND ORDER
This matter is before the Court upon review of petitioner’s response to the Order to Show
Cause.1 Having carefully reviewed petitioner’s response, the Court concludes that his arguments
are without merit and that the instant action is time-barred under 28 U.S.C. § 2244.
Background
On July 1, 2014, petitioner was found guilty by a jury of two counts of first degree child
molestation. See State v. Hicks, No. 12SF-CR01132-01 (24th Judicial Circuit, St. Francois County
Court). On August 15, 2014, petitioner was sentenced to thirty years’ imprisonment on each count,
to be served consecutively, for a total term of imprisonment of sixty years. Petitioner filed a timely
appeal, and his conviction and sentence was affirmed on appeal on September 8, 2015. Hicks v.
State, No. ED101927.
Petitioner filed his post-conviction motion to vacate his sentence, pursuant to
Mo.Sup.Ct.R. 29.15 on August 27, 2014. See Hicks v. State, No. 14SF-CC00181 (24th Judicial
Circuit, St. Francis County Court). Counsel for petitioner filed an amended motion to vacate after
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On October 18, 2018, the Court ordered petitioner to show cause as to why the Court should not
dismiss the instant application for writ of habeas corpus as time-barred.
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his direct appeal was denied, on May 26, 2016. Petitioner’s motion to vacate was denied on June
28, 2016.
Petitioner timely appealed the denial of his motion to vacate to the Missouri Eastern
District Court of Appeals. See Hicks v. State, No. ED104685. The Court denied the
post-conviction appeal on April 25, 2017, and the mandate was entered on May 2, 2017.
On petitioner’s application for writ of habeas corpus, brought pursuant to 28 U.S.C. §
2254, petitioner declares that he placed his application in the prison mailing system at Southeast
Correctional Center (“SECC”) on June 14, 2018.
Discussion
Pursuant to 28 U.S.C. § 2244(d), a petitioner has one year from the date his judgment of
conviction becomes final within which to file a petition for writ of habeas corpus. Where, as here,
a Missouri petitioner does not seek transfer to the Missouri Supreme Court after direct appeal, his
judgment becomes final upon expiration of the time within which to seek such discretionary
review, that is, fifteen days after the court of appeals issues its opinion. Gonzalez v. Thaler, 132 S.
Ct. 641 (2012); Mo. S. Ct. R. 83.02.
Accordingly, petitioner’s judgment of conviction here became final on September 23,
2015, fifteen days after the Missouri Court of Appeals affirmed his conviction on direct appeal.
The one-year limitations period was tolled, however, during the pendency of petitioner’s
post-conviction proceedings, that is, from August 27, 2014 through May 2, 2017. See Payne v.
Kemna, 441 F.3d 570, 572 (8th Cir. 2006) (post-conviction relief proceedings final on issuance of
the mandate). Petitioner’s application for habeas relief was due to the Court no later than
three-hundred and sixty-five days from May 2, 2017. In other words, his petition was due to the

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Court no later than May 2, 2018. Unfortunately, petitioner placed his application for relief in the
prison mailbox on June 14, 2018, making his petition forty-three (43) days late.
In his response to the Order to Show Cause, petitioner asserts that he should be excused
from the one-year statute of limitations because he is indigent, the law library at Southeast
Correction Center is inadequate, he doesn’t know the law, there was no one to assist him in his
legal procedures, he has been moved around quite a bit, and there was a delay in receipt of his
exhibits to his petition.2
Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable
tolling is Aan exceedingly narrow window of relief. Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir.
2001).

Pro se status, lack of legal knowledge or legal resources, confusion about or

miscalculations of the limitations period, or the failure to recognize the legal ramifications of
actions taken in prior post-conviction proceedings are inadequate to warrant equitable tolling.
Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004) (quotation marks omitted); Kreutzer v.
Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (holding that Aeven in the case of an unrepresented
prisoner alleging a lack of legal knowledge or legal resources, equitable tolling has not been
warranted@).

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The Court is unaware of petitioner’s assertions regarding his failure to file his exhibits to his
petition, in addition to his allegations relating to his inability to file a timely motion to proceed in
forma pauperis. Exhibits were filed as attachments to petitioner’s complaint, and petitioner filed
his certified account statement, which the Court interprets as a motion to proceed in forma
pauperis, on November 5, 2018. Neither of the aforementioned filings have any bearing on the
timeliness of petitioner’s application for habeas corpus.
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Petitioner’s vague assertions about his lack of counsel are clearly insufficient to allow
equitable tolling. The Eighth Circuit Court of Appeals has repeatedly held that faulty or lack of
legal assistance alone does not warrant equitable tolling. See Beery v. Ault, 312 F.3d 948, 951 (8th
Cir.2002) ("[i]neffective assistance of counsel generally does not warrant equitable tolling");
Sellers v. Burt, 168 Fed.Appx. 132, 133 (8th Cir.) (unpublished opinion) (rejecting petitioner's
argument that the statute of limitations should be tolled "because his state post-conviction attorney
failed to communicate with him and did not send his case file"); Greene v. Washington, 14
Fed.Appx. 736, 737 (8th Cir.2001) (rejecting equitable tolling argument based on alleged mistake
by post-conviction attorney) (unpublished opinion).
Moreover, this Court cannot begin to examine petitioner’s assertions regarding his belief
that his Constitutional rights were violated during this trial court process when he has not first
shown that he was diligently pursuing his rights and some extraordinary circumstance prevented
him from presenting his claims to this Court in a timely fashion. Holland v. Florida, 560 U.S.
631, 649 (2010).
As petitioner has failed to give an equitable reason why his untimeliness should be
excused, the Court must dismiss the petition under 28 U.S.C. § 2244 as time-barred.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion to proceed in forma pauperis [Doc.
#7] is GRANTED.
IT IS FURTHER ORDERED that petitioner’s application for writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254 is DENIED AND DISMISSED as time-barred. Rule 4 of
the Rules Governing Habeas Corpus Proceedings.

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IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability.
See 28 U.S.C. § 2253.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel [Doc.
#3] is DENIED AS MOOT.
Dated this 26th day of November, 2018.

/s/ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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