Hovis v. Spackler
MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that the petition is DENIED, and this action is DISMISSED. An Order of Dismissal will be filed separately. Signed by District Judge Audrey G. Fleissig on 1/27/2016. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JASON MICHAEL HOVIS,
No. 4:15CV1647 NAB
MEMORANDUM AND ORDER
Jason Hovis petitions the Court for a writ of habeas corpus under 28 U.S.C.
§ 2254. The petition is barred by the limitations period and is dismissed. See 28 U.S.C.
§ 2254 Rule 4; Day v. McDonough, 547 U.S. 198, 210 (2006) (permitting sua sponte
dismissal of untimely petitions after fair notice).
On April 15, 2013, petitioner pled guilty to two counts of first-degree statutory
sodomy. Missouri v. Hovis, No. 12JE-CR02316-01 (Jefferson County). On the same
day, the court sentenced him to ten years’ imprisonment on both counts, with the
sentences to run concurrently. Petitioner did not appeal, and he did not file a motion for
postconviction relief under Rule 24.035.
Petitioner filed the instant petition on October 6, 2015. He argues that he was
wrongfully prosecuted, that his counsel was ineffective, and that the prosecutor
Under 28 U.S.C. § 2244(d):
(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.
Petitioner had ten days from the entry of the criminal judgment to file an appeal.
Mo. S.Ct. R. 81.04(a). Therefore, the judgment became final on about April 25, 2013,
and the limitations expired on about April 25, 2014.
Petitioner argues that he was impeded from filing a timely habeas petition by the
state because his caseworker at the Eastern Reception Diagnostic and Correctional Center
told him he “would get more time” and because he did not have access to the law library
until he was transferred to the Western Missouri Correctional Center. He argues that his
petition is therefore timely under § 2244(d)(1)(B).
A “28 U.S.C. § 2244(d)(1)(B) claim must satisfy a far higher bar than that for
equitable tolling.” Ramirez v. Yates, 571 F.3d 993, 1000 (9th Cir. 2009). A petitioner “is
entitled to the commencement of a new limitations period under § 2244(d)(1)(B) only if
[the state action] prevented him from presenting his claims in any form, to any court.”
Id. at 1001 (emphasis in original).
The lack of access to the prison’s library and the caseworker’s reassurances did
not make it impossible for petitioner to timely file his petition “in any form, to any
court.” Id. “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 omitted); see Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000)
(holding that “even in the case of an unrepresented prisoner alleging a lack of legal
knowledge or legal resources, equitable tolling has not been warranted”). Moreover, to
be entitled to equitable tolling, a petitioner must demonstrate both that he has been
diligently pursuing his rights and that an extraordinary circumstance stood in his way.
Holland v. Florida, 560 U.S. 631, 649 (2010). Petitioner has not demonstrated that he
diligently pursued his rights or that an extraordinary circumstance prevented him from
timely filing the petition. As a result, the petition is barred by the limitations period.
The Court previously ordered petitioner to show cause why this action should not
be dismissed. He did not file a timely response.
Finally, petitioner has failed to demonstrate that jurists of reason would find it
debatable whether the petition is untimely. Thus, the Court will not issue a certificate of
appealability. 28 U.S.C. § 2253(c).
IT IS HEREBY ORDERED that the petition is DENIED, and this action is
An Order of Dismissal will be filed separately.
Dated this 27th day of January, 2016.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
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