Jackson v. Wallace

Filing 13

MEMORANDUM: The Court concludes that the petition for a writ of habeas corpus was untimely filed under 28 U.S.C. § 2244(d) and must be dismissed. Additionally, because petitioner has failed to 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 Carol E. Jackson on 1/5/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL L. JACKSON,
Petitioner,
vs.
IAN WALLACE,
Respondent.

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Case No. 4:14-CV-1104-CEJ

MEMORANDUM
This matter is before the Court on the petition of Michael L. Jackson for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a response in
opposition. Petitioner has replied, and the issues are fully briefed.
A. Background
Previously, the Court found that the petition was filed after expiration of the
one-year statute of limitations under the Antiterrorism and Effective Death Penalty
Act (AEDPA). See 28 U.S.C. § 2244(d)(1). Specifically, the Court found that the
statute of limitations ran for 469 untolled days from the final judgment on
petitioner’s direct appeal of his conviction until the filing of his federal habeas
corpus petition. One hundred and three untolled days ran between the conclusion
of petitioner’s direct appeal and the filing of his state motion for post-conviction
relief. See Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001). Three hundred
and sixty-six additional untolled days ran between the conclusion of appellate
review of the state motion for post-conviction relief and the filing of the instant
federal habeas corpus petition.
Petitioner was given the opportunity to assert grounds for equitable tolling.

He responded and attached supporting exhibits. Petitioner asserts a single relevant
argument1 for equitable tolling: His post-conviction counsel sent him a letter
erroneously informing him that he had “one year” from the date the Missouri Court
of Appeals issued its mandate after denying his motion for post-conviction relief in
which to timely file his federal habeas corpus petition.

[Doc. #12-1]

The

attorney’s statement was in error because petitioner in fact had only 262 days
remaining to timely file, 103 untolled days having already elapsed. Petitioner thus
argues he is entitled to equitable tolling of the statute of limitations because he
relied on his post-conviction counsel’s erroneous advice.
B. Equitable Tolling
Section “2244(d) is subject to equitable tolling in appropriate cases.”
Holland v. Florida, 560 U.S. 631, 645 (2010).

“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.” Burns v. Prudden, 588 F.3d 1148, 1150 (8th Cir. 2009) (quoting
Walker v. Norris, 436 F.3d 1026, 1032 (8th Cir. 2006)).

“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 and
citations omitted).
habeas

petition

Further, “an attorney’s miscalculation of the due date for a

[can]not

constitute

an

1

extraordinary

circumstance

allowing

The Court deemed the petition filed on the day it was delivered to prison authorities for mailing to the
Western District of Missouri, so the prison mailbox rule and the transfer of the petition to this district
(which is the proper venue) are irrelevant to the equitable tolling issue.

2

equitable tolling of the limitations period. . . .

[A] counsel’s miscalculation of [a

petitioner’s] filing deadline is a ‘garden variety claim’ of neglect and does not
warrant equitable tolling.” Rues v. Denney, 643 F.3d 618, 621–22 (8th Cir. 2011)
(citing Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000)); see Maples v.
Thomas, 132 S. Ct. 912, 922 (2012) (“[W]hen a petitioner’s postconviction attorney
misses a filing deadline, the petitioner is bound by the oversight and cannot rely on
it to establish cause.” (citation omitted)); Holland, 560 U.S. at 651–52 (“[A] garden
variety claim of excusable neglect, such as a simple miscalculation that leads a
lawyer to miss a filing deadline, does not warrant equitable tolling.” (quotation
marks and citations omitted)); Lawrence v. Florida, 549 U.S. 327, 336–37 (2007)
(holding “[a]ttorney miscalculation is simply not sufficient to warrant equitable
tolling”).
Twin considerations foreclose equitable tolling here. First, counsel’s error in
calculating how much time remained for filing the petition “does not warrant
equitable tolling.” Rues, 643 F.3d at 621–22. It therefore follows that petitioner’s
reliance on counsel’s error does not warrant equitable tolling. See Shoemate, 390
F.3d at 598.
Second, petitioner can hardly be said to have diligently pursued his rights,
and no extraordinary circumstances stood in his way.

Petitioner’s mistake

regarding the remaining time to file the petition does not explain why he waited
until the statute of limitations had run to file it, and he has offered no such
explanation. Therefore, petitioner has not demonstrated both the diligence and the
extraordinary circumstances required for equitable tolling to apply.

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Accordingly, petitioner is not entitled to equitable tolling of the statute of
limitations, and the petition must be dismissed.

See 28 U.S.C. § 2244(d)(1);

Cross–Bey v. Gammon, 322 F.3d 1012 (8th Cir. 2003).
III. Conclusion
The Court concludes that the petition for a writ of habeas corpus was
untimely filed under 28 U.S.C. § 2244(d) and must be dismissed.

Additionally,

because petitioner has failed to 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).

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 5th day of January, 2016.

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