Hicks v. Hurley

Filing 6

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)

Download PDF
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION NATHAN L. HICKS, Petitioner, v. JAMES HURLEY, Respondent. ) ) ) ) ) ) ) ) ) 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. Petition 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. Discussion 1 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. 1 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 warranted@). 2 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. Accordingly, 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. 3 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 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?