Jackson v. Wallace

Filing 19

MEMORANDUM AND ORDER: The Court again 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). A separate amended judgment shall issue. Signed by District Judge Carol E. Jackson on 5/10/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL L. JACKSON,

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Petitioner,
vs.
IAN WALLACE,
Respondent.

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

MEMORANDUM AND ORDER
This matter is before the Court on respondent’s motion to vacate the
judgment entered on January 5, 2016, and to deny the petition of Michael L.
Jackson for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Fed. R. Civ.
P. 60(b)(6); [Docs. ##13, 14].
I. Relief from Judgment
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 un-tolled 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 un-tolled 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.

On December 16, 2015, petitioner was given the opportunity to assert
grounds for equitable tolling. The deadline was January 19, 2016. On December
19, 2015, petitioner submitted a document titled “Reply To Respondent’s Answer to
Petition.”1

In the late reply, petitioner advanced several arguments why he is

entitled to equitable tolling. Believing the “Reply” was intended to be petitioner’s
response to the December 16 order, the Court addressed and rejected petitioner’s
arguments for equitable tolling, and entered judgment dismissing the petition as
untimely filed. [Docs. ##13, 14]
On January 15, 2016, the Court received a letter from petitioner. [Doc. #15]
He explained that the Reply was not a response to the Order but was instead his
reply to respondent’s answer. Petitioner did not request specific relief, nor did he
disclaim the arguments for equitable tolling advanced in the reply.
Respondent offers the following theory of what transpired.

On or about

December 17, petitioner drafted a late reply to respondent’s answer, in which he
suggested equitable tolling applies to his petition.
December 19.

He mailed the reply on

At that time petitioner had not received the December 16 order.

Thus, the Reply and the order crossed in the mail. When petitioner received the
order, he believed he had until January 19 to respond asserting grounds for
equitable tolling.
Assuming respondent’s theory is correct, vacating the judgment would be in
the interests of justice. See Fed. R. Civ. P. 60(b)(6). For the reasons discussed
below, however, the Court again finds that petitioner is not entitled to equitable
tolling.
1

Respondent answered on October 6, 2015. Pursuant to the Case Management Order, petitioner’s
reply was due on December 4, 2015. [Doc. #5]

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II. Equitable Tolling
In the “Memorandum to Equitable Tolling” and accompanying exhibits [Doc.
#16], petitioner advances the same argument for equitable tolling that he raised in
his earlier Reply. Specifically, he asserts that 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 postconviction relief in which to timely file his federal habeas corpus petition.

The

attorney’s statement was in error because petitioner in fact had only 262 days
remaining to timely file, 103 un-tolled days having already elapsed.
As the Court previously explained, two considerations foreclose equitable
tolling despite counsel’s error. First, the attorney’s error in calculating how much
time remained for filing the petition “does not warrant equitable tolling.” Rues v.
Denney, 643 F.3d 618, 621–22 (8th Cir. 2011) (citation omitted); see Maples v.
Thomas, 132 S. Ct. 912, 922 (2012); Holland v. Florida, 560 U.S. 631, 651–52
(2010); Lawrence v. Florida, 549 U.S. 327, 336–37 (2007). Petitioner’s reliance on
that error therefore also does not warrant equitable tolling.

See Shoemate v.

Norris, 390 F.3d 595, 598 (8th Cir. 2004). Second, 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. He therefore has not demonstrated both the
diligence and extraordinary circumstances required for equitable tolling to apply.
See Burns v. Prudden, 588 F.3d 1148, 1150 (8th Cir. 2009); Shoemate, 390 F.3d
at 598.
Accordingly, petitioner is not entitled to equitable tolling of the statute of
limitations, and the petition must be dismissed.

3

See 28 U.S.C. § 2244(d)(1);

Cross–Bey v. Gammon, 322 F.3d 1012 (8th Cir. 2003).
III. Conclusion
The Court again 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).
A separate amended judgment shall issue.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 10th day of May, 2016.

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