Donaby v. USA

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that no order to show cause shall issue as to respondent, because the instant 28 U.S.C. ' 2255 motion is time- barred. IT IS FURTHER ORDERED that movant=s motion pursuant to 28 U.S.C. ' 2255 is DENIED AND DISMISSED as time-barred. IT IS FURTHER ORDERED that movant is DENIED a certificate of appealability if he appeals this Order of Dismissal. Signed by District Judge John A. Ross on 4/18/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ERIC DONABY,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16-CV-386-JAR

MEMORANDUM AND ORDER
This matter is before the Court on review of movant=s response to show
cause why this action should not be dismissed as untimely [Doc. 3].1 For the
reasons set forth below, the Court concludes that movant’s arguments do not
justify the extraordinary remedy of equitable tolling, and the instant action will be
dismissed as time-barred pursuant 28 U.S.C. ' 2255(1).
In his response to show cause, movant argues that circumstances beyond his
control warrant the tolling of the one-year statute of limitations.

More

specifically, movant contends that (1) he was unable to research his

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On March 23, 2016, this Court entered a Memorandum and Order, adopted
herein by reference, instructing movant to show cause why the Court should not
dismiss the instant motion to vacate, set aside, or correct sentence as time-barred
[Doc. 2].

ineffective-assistance-of-counsel claim while incarcerated at Menard Correctional
Institution and Big Muddy Correctional Institution, because the State of Illinois
had “limited Federal law material,” and all the “legal books were outdated”; (2)
“staff regularly confiscated and held [his] legal work due to the size of the cells
and limitations of property”; (3) after being sentenced in federal court on July 16,
2013, he returned to state custody, and “the law clerk at Menard” told him “he had
one year to file his § 2255 once he was in federal custody”; (4) he filed his § 2255
motion to vacate within one year of his transfer to federal custody in August 2015,
and therefore, it is timely; (5) if “this court rules that [his] claim is untimely he will
suffer further injury to his pending contemplated legal claims; (6) “in May of 2014
a staff member . . . came and took all of [movant’s] property as a retaliation due to
the amount of cigarettes found in the prison”; (7) “the Illinois prison officials
denied him access to federal books and a copy of the Antiterrorism and Effective
Death Penalty Act (AEDPA)”; (8) defense counsel was ineffective for allowing
movant “to be enhanced for a nonexistent drug trafficking offense”; and (9) his
“claim involves off-the-record events that occurred at various Illinois State Prison
facilities.”

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Discussion
After carefully considering movant’s equitable tolling arguments, the Court
concludes that he has failed to meet his burden of establishing grounds to justify
tolling in this case.

As amended by the Antiterrorism and Effective Death

Penalty Act of 1996 ("AEDPA"), 28 U.S.C. ' 2255 provides:
A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of-(1) The date on which the judgment of conviction
becomes final;
(2) the date on which the impediment to making a
motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
The AEDPA=s one-year statute of limitations is mandatory, absent a showing
of extraordinary circumstances.

See 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). A movant is entitled
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to equitable tolling of the statute of limitations if he demonstrates (1) that he pursued
his rights diligently; and (2) that some extraordinary circumstance stood in his way
that prevented timely filing. Holland v. Florida, 130 S. Ct. 2549 (2010). The
burden of establishing grounds that warrant equitable tolling rests with the prisoner.
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

Conclusory allegations are

insufficient. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998); see also Brown v.
Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008) (“[A]n inmate bears a strong burden to
show specific facts to support his claim of extraordinary circumstances and due
diligence.”). Ignorance of the law and lack of legal experience typically do not
excuse an untimely filing, even for a pro se incarcerated prisoner. Shoemate v.
Norris, 390 F.3d 595, 598 (8th Cir. 2004); see also Marsh v. Soares, 223 F.3d 1217,
1220 (10th Cir. 2000) (ignorance of the law, including existence of AEDPA,
insufficient to warrant tolling).
After careful consideration of movant’s tolling arguments, the Court finds
that he has failed to demonstrate he pursued his rights diligently and that an
extraordinary circumstance stood in his way and prevented the timely filing of this
habeas corpus action. Movant does not contend that he was ignorant of the
one-year statute of limitations governing federal habeas proceedings. Rather, he
argues that the State of Illinois created an impediment by virtue of the lack of
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library resources and/or access to a law clerk and that “the law clerk at Menard”
told him the limitations period would not commence until he returned to federal
custody in August 2015.

Generally, however, conditions unique to prison

confinement, such as lockdowns, transfers, and restricted access to a prison library,
do not qualify as extraordinary circumstances. See, e.g., Williams v. LaMarque,
2002 WL 1766576 (N.D. Cal. 2002) (equitable tolling not allowed based on
inadequate prison law library where petitioner was told by his attorney there was a
one-year deadline). Moreover, it is of no consequence to the issue of tolling that a
Menard law clerk erroneously told movant the limitations period would not
commence until he was transferred to federal custody. Cf. Chaffer v. Prosper, 592
F.3d 1046, 1048-49 (9th Cir. 2010) (the fact that petitioner relied on an inmate law
clerk in drafting his state petition did not relieve petitioner from complying with the
law).
Moreover, the United States Supreme Court has stated that “the Constitution
does not require that prisoners . . . be able to conduct generalized research, but only
that they be able to present their grievances to the court.” Lewis v. Casey, 518 U.S.
343, 360 (1996). The type of ineffective assistance claim that movant had against
his attorney required little or no legal research, and, more importantly, movant does
not contend that he was prevented from sending mail to federal court, and he does
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not assert facts that demonstrate how he allegedly was prevented from preparing his
habeas motion. See Muhammad v. U.S., 735 F.3d 812, 815-17 (8th Cir. 2013) (no
tolling where movant did not claim he was prohibited from contacting the court or
that he was denied any mail sent from the court; equitable tolling is not proper when
an unrepresented prisoner claims lack of legal resources).
Movant’s remaining grounds for tolling are conclusory. He has failed to
show how the alleged absence of legal materials in the Illinois prison libraries was
the cause of his failure to file a timely habeas motion. See Lewis v. Casey, 518 U.S.
343, 351 (1996) (prisoner must show how alleged library shortcomings hindered his
efforts to pursue his claim); Finch v. Miller, 491 F.3d 424, 427 (8th Cir. 2007)
(rejecting petitioner’s impediment claim based on a lack of adequate library and
legal aids to assist in research where it was not shown how these inadequacies
hindered his efforts to pursue habeas relief). In addition, movant has failed to
provide the specific time periods he claims he was adversely impacted by
“government action.” For example, he summarily states that the “staff regularly
confiscated and held [his] legal work due to the size of the cells and limitations of
property.” Movant’s conclusory allegations are insufficient to justify equitable
tolling. See Miller v. Marr, 141 F.3d at 978; Akins v. U.S., 204 F.3d 1086, 1089
(11th Cir. 2000); Bryant v. Arizona Atty. Gen., 499 F.3d 1056, 1060 (9th Cir. 2007)
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(lack of access to case law during relevant time period was not an impediment for
purposes of statutory tolling because there was no showing it prevented petitioner
from filing his petition); cf. Roberts v. Cockrell, 319 F.3d 690, 695 (5th Cir. 2003)
(petitioner failed to supply “the necessary details concerning his hospitalizations,
such as when and for how long and at what stage of the proceedings they occurred,
so as to allow a determination of whether they could have interfered with his ability
to file his § 2254 application in a timely manner.”); Posada v. Schomig, 64 F. Supp.
2d 790, 795 (C.D. Ill. 1999) (no tolling where petitioner failed to identify dates of
prison lockdown and failed to show lockdowns were the cause for his not filing
timely petition); Hizbullah-Ankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) (no
causal connection between period in solitary confinement and failure to file timely
petition). For these reasons, the Court will dismiss this case as time-barred.
Therefore,
IT IS HEREBY ORDERED that no order to show cause shall issue as to
respondent, because the instant 28 U.S.C. ' 2255 motion is time-barred.
IT IS FURTHER ORDERED that movant=s motion pursuant to 28 U.S.C.
' 2255 is DENIED AND DISMISSED as time-barred.
IT IS FURTHER ORDERED that movant is DENIED a certificate of
appealability if he appeals this Order of Dismissal.
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Dated this 18th day of April, 2016.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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