Garrett v. Bowersox

Filing 6

MEMORANDUM AND ORDER re: 1 ORDERED that this action is DISMISSED. A separate Order of Dismissal will be filed forthwith. Signed by District Judge Henry E. Autrey on 11/25/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ARVIN J. GARRETT,
Petitioner,
v.

MICHAEL S. BOWERSOX,
Respondent.

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No. 4:13CV1768 SPM

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on its own motion. The petition is barred by the
one-year limitations period, and the Court will summarily dismiss it.
Petitioner seeks to challenge his 1977 conviction and sentence for first-degree
murder. Petitioner claims that his conviction was defective because he was charged
by Information rather than by Indictment. It is unclear to the Court what action
petitioner may have taken in the 1970’s or 1980’s in this Court because no files from
that period can be located in the archives.1 However, it is clear that the petition is
time-barred.
Under 28 U.S.C. § 2244(d):

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Many files from that time period have been destroyed.

(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
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.
The one-year period of limitations for filing habeas petitions did not exist when
petitioner was convicted, or prior to enactment of the AEDPA on April 24, 1996. In
addressing this issue, the United States Court of Appeals for the Eighth Circuit has
“held that time before the effective date of AEDPA, April 24, 1996, is not counted
in computing the one-year period of limitation [under § 2244(d)]. Prisoners whose
judgments of conviction became final before the effective date of AEDPA are given

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a one-year period after that date, or until April 24, 1997, plus any additional periods
during which the statute is tolled.” Peterson v. Gammon, 200 F.3d 1202, 1204 (8th
Cir. 2000). As a result, the one-year period of limitations for the instant petition
expired more than sixteen years ago.
Under the doctrine of equitable tolling, the AEDPA’s statutory limitations
period may be tolled if a petitioner can show that (1) he has been diligently pursuing
his rights and (2) an extraordinary circumstance stood in his way. Holland v. Florida,
130 S. Ct. 2549, 2562 (2010). Equitable tolling is a flexible procedure that involves
both recognition of the role of precedent and an “awareness of the fact that specific
circumstances, often hard to predict in advance, could warrant special treatment in an
appropriate case.” Id. at 2563. Petitioner advances no argument that he has been
diligently pursuing his rights or that extraordinary circumstances stood in his way.
Therefore, he is not entitled to equitable tolling.
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED.
A separate Order of Dismissal will be filed forthwith.
Dated this 25th day of November, 2013.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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