Hicks v. Hurley
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioners application for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 is DENIED AND DISMISSED as time-barred. Rule 4 of the Rules Governing Habeas Corpus Proceedings. IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability. See 28 U.S.C. § 2253. Signed by District Judge John A. Ross on 10/27/15. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NATHAN L. HICKS,
No. 4:15CV1311 JAR
MEMORANDUM AND ORDER
This matter is before the Court on petitioner=s response to the order to show cause. 1
Having carefully reviewed petitioner’s response, the Court concludes that his arguments are
without merit, and that the instant action is time-barred under 28 U.S.C. § 2244.
Petitioner was found guilty by a jury of rape and sodomy on September 19, 1991. See
State v. Hicks, No. 22911-02099-01 (22nd Judicial Circuit, St. Louis City). The Circuit Court for
the City of St. Louis sentenced petitioner to life in prison on May 15, 1992. Petitioner appealed
his conviction and sentence on May 22, 1992. See State v. Hicks, ED62081 (Mo.Ct.App. 1993).
The conviction and sentence was affirmed on June 1, 1993. Id.
Petitioner filed his federal writ of habeas corpus, pursuant to 28 U.S.C. § 2254 by placing
the current application in the mail on September 4, 2015.
On October 8, 2015, the Court ordered petitioner to show cause as to why the Court should not
dismiss the instant application for writ of habeas corpus as time-barred.
Pursuant to 28 U.S.C. § 2244(d), a petitioner has one year from the date his judgment of
conviction becomes final within which to file a petition for writ of habeas corpus. Where, as here,
a Missouri petitioner does not seek transfer to the Missouri Supreme Court after direct appeal, his
judgment becomes final upon expiration of the time within which to seek such discretionary
review, that is, fifteen days after the court of appeals issues its opinion. Gonzalez v. Thaler, 132
S.Ct. 641 (2012); Mo. S. Ct. R. 83.02. Accordingly, petitioner=s judgment of conviction became
final on June 16, 1993, fifteen (15) days after the Missouri Court of Appeals affirmed his
conviction on direct appeal.
In his response to the Order to Show Cause, petitioner asserts that he should be excused
from the one-year statute of limitations because he had ineffective assistance of counsel, his
imprisonment has far exceeded just punishment under the law, and he believes his Constitutional
rights were violated in the course of his criminal proceedings.
AGenerally, 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.@ Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable
tolling is Aan exceedingly narrow window of relief.@ Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir.
2001). APro 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 omitted); Kreutzer v.
Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (holding that Aeven in the case of an unrepresented
prisoner alleging a lack of legal knowledge or legal resources, equitable tolling has not been
Petitioner’s vague assertions about ineffective assistance of counsel are clearly insufficient
to allow equitable tolling. The Eighth Circuit Court of Appeals has repeatedly held that faulty legal
assistance alone does not warrant equitable tolling. See Beery v. Ault, 312 F.3d 948, 951 (8th
Cir.2002) ("[i]neffective assistance of counsel generally does not warrant equitable tolling");
Sellers v. Burt, 168 Fed.Appx. 132, 133 (8th Cir.) (unpublished opinion) (rejecting petitioner's
argument that the statute of limitations 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) (rejecting equitable tolling argument based on alleged mistake
by post-conviction attorney) (unpublished opinion).
Moreover, this Court cannot begin to examine petitioner’s assertions regarding his belief
that his Constitutional rights were violated during this trial court process when he has not first
shown that he was diligently pursuing his rights and some extraordinary circumstance prevented
him from presenting his claims to this Court in a timely fashion. Holland v. Florida, 560 U.S.
631, 649 (2010). Similarly, petitioner’s assertions that his sentence violates the Eighth
Amendment’s cruel and unusual punishment clause cannot serve as an equitable tolling argument
in this instance.
As petitioner has failed to give an equitable reason why his untimeliness should be
excused, the Court must dismiss the petition under 28 U.S.C. § 2244.
IT IS HEREBY ORDERED that petitioner’s application for writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254 is DENIED AND DISMISSED as time-barred. Rule 4 of
the Rules Governing Habeas Corpus Proceedings.
IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability.
See 28 U.S.C. § 2253.
Dated this 27th day of October, 2015.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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