Hurst v. Norman

Filing 13

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Report and Recommendation filed on November 21, 2013 9 is SUSTAINED, ADOPTED AND INCORPORATED herein. IT IS FURTHER ORDERED that Petitioner Willie J. Hurst's Petition for Writ of Habeas Cor pus 1 is DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate Judgment in accordance with this Memorandum and Order is entered this same date... Signed by District Judge Rodney W. Sippel on 3/6/14. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIE J. HURST,

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Petitioner,
vs.
JEFF NORMAN,1
Respondent.

Case No. 4:11 CV 275 RWS

MEMORANDUM AND ORDER
Petitioner Willie J. Hurst seeks a writ of habeas corpus. I referred this
matter to United States Magistrate Judge Fredrick R. Buckles for a report and
recommendation on all dispositive matters pursuant to 28 U.S.C. § 636(b). On
November 21, 2013, Judge Buckles filed his recommendation that Hurst’s habeas
petition should be denied.
On January 7, 2014, Hurst filed objections to the Report and
Recommendation [#9]. I have conducted a de novo review of all matters relevant
to the objections. After careful consideration, I will adopt and sustain the thorough
reasoning of Judge Buckles and will deny Hurst’s habeas petition.
Hurst objects to Judge Buckles’ determination that his petition was untimely filed
pursuant to 28 U.S.C. § 2244(d)(1)(A). Hurst argues that he did not understand the
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Petitioner is currently incarcerated at the Southeast Correctional Center (SECC) in Charleston, Missouri. To the
extent that Ian Wallace is Superintendent of SECC, he should be substituted for Jeff Norman as proper party
respondent. See Rule 2(a), Rules Governing Section 2254 Cases in the United States District Courts.
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proper procedure for filing his petition due to his ignorance of the law and lack of
legal assistance. For this reason, Hurst argues that he is entitled to equitable
tolling. Equitable tolling is proper only when extraordinary circumstances beyond
a prisoner's control make it impossible to file a petition on time. 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. Id. Accordingly, Hurst fails assert
extraordinary circumstances warranting the application of equitable tolling. Judge
Buckles correctly applied the law in reaching his recommendation that Hurst’s
habeas petition should be denied.
I have also considered whether to issue a certificate of appealability. To
grant a certificate of appealability, a court must find a substantial showing of the
denial of a federal constitutional right. See Tiedeman v. Benson, 122 F.3d 518,
522 (8th Cir. 1997). A substantial showing is a showing that issues are debatable
among reasonable jurists, a court could resolve the issues differently, or the issues
deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997)
(citing Fleiger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)). Because Hurst has
not made such a showing, I will not issue a certificate of appealability.
Accordingly,

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IT IS HEREBY ORDERED that the Report and Recommendation filed on
November 21, 2013 [#9] is SUSTAINED, ADOPTED AND INCORPORATED
herein.
IT IS FURTHER ORDERED that Petitioner Willie J. Hurst’s Petition for
Writ of Habeas Corpus [#1] is DENIED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability. A separate Judgment in accordance with this Memorandum and
Order is entered this same date.

______________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 6th day of March, 2014.

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