Endicott v. Hurley

Filing 5

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that no order to show cause shall issue at this time as to respondent, because the instant petition appears to be time-barred under 28 U.S.C. ' 2244(d)(1). IT IS FURTHER ORDERED that petitioner shall show cause within thirty (30) days of the date of this Order why the Court should not dismiss the instant application for a writ of habeas corpus as time-barred. Petitioner=s failure to file a show cause response shall result in the denial of the instant habeas corpus petition and the dismissal of this action as time-barred. Show Cause Response due by 6/11/2015.. Signed by District Judge Jean C. Hamilton on 5/11/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

FRANKLIN G. ENDICOTT,
Petitioner,
v.
JAMES HURLEY,
Respondent.

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No. 4:15-CV-736-DDN

MEMORANDUM AND ORDER
This matter is before the Court on transfer from the United States District
Court for the Western District of Missouri of petitioner Franklin G. Endicott’s
fee-paid petition for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254 [Doc.
#1]. Having reviewed the petition, the Court will order petitioner to show cause
why the Court should not dismiss this action as time-barred under 28 U.S.C. '
2244(d)(1).
The Petition
Petitioner challenges his 1993 conviction and sentence for second degree
assault and armed criminal action, which were entered in the Circuit Court of
Randolph County, Missouri. Petitioner states that the Missouri Court of Appeals
affirmed the conviction on August 23, 1994. Petitioner states his Rule 29.15

post-conviction motion was granted in part and denied in part on December 22,
1993, and that he was resentenced on January 4, 1994. In addition, petitioner
states that he filed a motion to recall the mandate on January 5, 2015, which was
denied on January 27, 2015.

In the instant action, petitioner claims ineffective

assistance of appellate counsel.
Discussion
Both 28 U.S.C. ' 2243 and Rule 4 of the Rules Governing ' 2254 Cases in
the United States District Courts provide that a district court may summarily
dismiss a petition for a writ of habeas corpus if it plainly appears that the petitioner
is not entitled to relief.
A review of the instant petition indicates that this action is time-barred under
28 U.S.C. ' 2244(d)(1)1 and is subject to summary dismissal. Petitioner states
that his direct appeal and post-conviction relief motion were decided in 1993-94;
however, the instant application for federal habeas corpus relief was not signed
until April 8, 2015, well after the running of the limitations period.

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Section 101 of the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (enacted on April 24, 1996), amended 28
U.S.C. ' 2244 by adding a one-year limitations period to petitions for writs of
habeas corpus.
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Petitioner asserts that this action is timely, because he was sentenced prior to
1996, and also because he recently filed a motion to recall the mandate in 2015.
The Court disagrees. Even affording petitioner the benefit of the one-year grace
period under the Antiterrorism and Effective Death Penalty Act, he nevertheless
would appear to be time-barred from litigating the instant petition, given that it was
submitted to the Court for filing well after April 24, 1997. See Moore v. United
States, 173 F.3d 1131, 1135 (8th Cir. 1999) (one-year grace period ends April 24,
1997). Moreover, it is axiomatic that equitable tolling of the AEDPA=s one-year
limitations period for filing a petition for writ of habeas corpus in federal court
requires Aextraordinary circumstances.@ See, e.g., Kreutzer v. Bowersox, 231 F.3d
460, 463 (8th Cir. 2000) (equitable tolling proper only when extraordinary
circumstances beyond prisoner=s control make it impossible to file timely petition).
Petitioner=s claims relative to the timeliness of the instant action do not establish
extraordinary circumstances required for equitable tolling, and the 2015 filing of a
motion to recall the mandate cannot resurrect an otherwise procedurally-defaulted
claim. Cf. Anderson v. White, 32 F.3d 320, 321 n.2 (8th Cir. 1994).
Because petitioner has not advanced an explanation that would warrant
tolling of the statute of limitations, the Court will order him to show cause within
thirty days of the date of this Order why this action should not be dismissed as

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untimely. Petitioner is warned that if he does not respond to this Order by the
deadline set forth below, this action will be dismissed without further notice to
him.
In accordance with the foregoing,
IT IS HEREBY ORDERED that no order to show cause shall issue at this
time as to respondent, because the instant petition appears to be time-barred under
28 U.S.C. ' 2244(d)(1).
IT IS FURTHER ORDERED that petitioner shall show cause within
thirty (30) days of the date of this Order why the Court should not dismiss the
instant application for a writ of habeas corpus as time-barred. Petitioner=s failure
to file a show cause response shall result in the denial of the instant habeas corpus
petition and the dismissal of this action as time-barred.
Dated this 11th day of May, 2015.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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