Coleman v. Wallace

Filing 19

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Petitioner Tyrone Colemans Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1 ) is DENIED, and that his claims are DISMISSED with prejudice. A s eparate Order of Dismissal will accompany this Memorandum and Order. IT IS FURTHER ORDERED that because Petitioner cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Signed by District Judge Jean C. Hamilton on 4/19/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TYRONE COLEMAN,
Petitioner,
v.
IAN WALLACE,
Respondent.

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Case No. 4:13-cv-02324-JCH

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Tyrone Coleman’s pro se Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. (Petition, ECF No.
1.)

The Government has filed a Response (ECF No. 10), and the Petition is ready for

disposition.
BACKGROUND
On January 30, 2009, a jury in the Circuit Court of St. Louis City found Petitioner guilty
of statutory rape in the first degree, forcible rape, incest, and statutory sodomy in the first degree.
On March 19, 2010, the trial court sentenced Petitioner to twenty-five years in prison. On
February 23, 2010, the Missouri Court of Appeals upheld Petitioner’s conviction on direct
appeal. On May 18, 2010, Petitioner moved for post-conviction relief pursuant to Missouri
Supreme Court Rule 29.15, which was denied. The Missouri Court of Appeals affirmed the
denial of post-conviction relief, and the Mandate was issued on December 13, 2012. (Petition at
1; Resp. Exs. B, E, G, J.)

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Petitioner is incarcerated at the Southeast Correctional Center in Charleston Missouri. In
the instant section 2254 Petition, he raises as grounds for relief several claims of trial court error
and prosecutorial misconduct. (Petitioner at 13-15.)
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 requires a state prisoner
seeking federal habeas corpus relief to file a section 2254 petition within one year after his state
conviction becomes final. See 28 U.S.C. § 2244(d). The one-year period begins to run on “the
date on which the judgment became final,” but it does not include “[t]he 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.” Id. Thus, the one-year period is tolled during the
pendency of a properly filed state petition for post-conviction relief. See Curtiss v. Mount
Pleasant Corr. Facility, 338 F.3d 851, 853 (8th Cir. 2003).
Upon review of the record, the Court concludes that Petitioner failed to timely file his
federal habeas petition. Petitioner’s conviction became final on March 10, 2010. See Gonzales
v. Thaler, 132 S. Ct. 641, 653-54 (2012) (if state prisoner does not seek certiorari on direct
review, direct review concludes when time limit for seeking further review expires); see also
Mo. S. Ct. R. 84.17 (motion for rehearing or transfer must be filed within 15 days after court
files opinion). The one-year limitation period was tolled, however, during the pendency of
Petitioner’s post-conviction proceedings, from May 18, 2010 until December 13, 2012. Totaling
the 69 days between March 10, 2010 and May 18, 2010, and the 334 days between December 13,

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2012 and the Petition’s postmark date of November 12, 2013, 403 days had elapsed as of the
date the Petition was placed in the prison mailbox.1
Petitioner contends that he is nevertheless entitled to equitable tolling because the delay
in filing his Petition “was caused by [his] inability to obtain a trial transcript in a timely manner.”
Petitioner attributes his delayed filing to the “gross misconduct” of his state post-conviction
counsel, who he alleges “failed to release [his] trial transcript” upon request and “err[ed] in
calculating the tolling period.” (ECF No. 16 at 11-15.)
The one-year limitation period set forth in section 2244(d) is subject to equitable tolling
in appropriate cases. See Holland v. Florida, 560 U.S. 631, 645 (2010). “[A] petitioner is
entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id.
at 649 (quotation and citation omitted).

However, “equitable tolling affords the otherwise

time-barred petitioner an exceedingly narrow window of relief,” see Jihad v. Hvass, 267 F.3d
803, 805 (8th Cir. 2001), and the Eighth Circuit has held that “[i]neffective assistance of counsel
generally does not warrant equitable tolling,” Beery v. Ault, 312 F.3d 948, 951 (8th Cir. 2002).
The Court concludes that Petitioner’s allegations regarding his post-conviction counsel’s
failure to release his transcript and miscalculation of the tolling period do not present
extraordinary circumstances that justify equitable tolling. See Jihad, 267 F.3d at 806 (“lack of
access to a trial transcript does not preclude a petitioner from commencing post-conviction
proceedings and therefore does not warrant equitable tolling”); Gassler v. Bruton, 225 F.3d 492,
495 (8th Cir. 2001) (“[W]e understand petitioner’s desire to have a transcript before filing for

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Under the prison mailbox rule, a document filed by a pro se prisoner is “filed” at the time the
prisoner delivers the document to prison authorities for forwarding. See Houston v. Lack, 487
U.S. 266, 276 (1988).
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post-conviction relief. Possession of a transcript, however, is not a condition precedent to the
filing of such proceedings.”); cf. Sellers v. Burt, 168 Fed. Appx. 132, 133 (8th Cir. 2006)
(unpublished per curiam) (rejecting petitioner’s argument that the limitation period 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) (unpublished
per curiam) (rejecting equitable tolling argument based on alleged mistake by post-conviction
attorney regarding filing deadline). Petitioner argues that the Ninth Circuit’s holding in Spitsyn
v. Moore, 345 F.3d 796 (9th Cir. 2003), is “particularly instructive.” (ECF No. 16 at 14.)
However, the Court finds Spitsyn factually distinguishable. The petitioner in Spitsyn hired and
retained an attorney to file his federal habeas a full year before the filing deadline, and despite
numerous requests by the petitioner, the attorney completely failing to file the petition and did
not return petitioner’s legal file until after the limitation period had expired. See Spitsyn, 345
F.3d at 800-01 (citing Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003) (“In spite
of being specifically directed by his client’s representatives to file a ‘2255,’ [petitioner’s
attorney] failed to file such a petition at all. By refusing to do what was requested by his client
on such a fundamental matter, [petitioner’s attorney] violated a basic duty of an attorney to his
client.”)).
Furthermore, Petitioner repeatedly states in his Petition that he received his trial transcript
on September 26, 2013.

(Petition at 13, 24, 25.) To be timely, the instant Petition had to be

filed on or before October 7, 2013. Therefore, to the extent Petitioner alleges that he did not
have a copy of his trial transcript at the time of the filing deadline, his allegation is refuted by his
own admissions in his Petition.

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For the foregoing reasons, the Court concludes that Petitioner did not timely file his
section 2254 Petition, and that the Petition must be dismissed.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner Tyrone Coleman’s Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED, and
that his claims are DISMISSED with prejudice. A separate Order of Dismissal will accompany
this Memorandum and Order.
IT IS FURTHER ORDERED that because Petitioner cannot make a substantial
showing of the denial of a constitutional right, the Court will not issue a certificate of
appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).

Dated this 19th Day of April, 2016.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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