Owens v. Steele

Filing 6

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that petitioner William Allen Owens's petition for writ of habeas corpus is DISMISSED. A separate order of dismissal will be entered herewith. IT IS FURTHER ORDERED that no certificate of appealability shall issue. Signed by District Judge Catherine D. Perry on 12/6/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM ALLEN OWENS,
Petitioner,
v.
TROY STEELE,
Respondent.

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No. 4:17-cv-2616-CDP

MEMORANDUM AND ORDER
This matter is before me upon petitioner’s response to my October 16, 2017 order
directing him to show cause why his petition should not be dismissed as untimely. After
reviewing and considering petitioner’s response, I conclude that the petition is subject to
dismissal because it is barred by the statute of limitations, and neither the doctrine of equitable
tolling nor 28 U.S.C. § 2244(d)(1)(D) apply. I will therefore dismiss the petition without further
proceedings.
Background
As set forth in detail in my October 26, 2017 order, petitioner filed the instant petition
after the expiration of the limitations period set forth in the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Briefly, however, the relevant dates are as follows. The oneyear period within which petitioner had to file a petition for writ of habeas corpus commenced on
June 1, 2013. The limitations period was tolled from November 4, 2013 (the date petitioner filed
his motion for post-conviction relief) through November 30, 2016 (the date the Missouri Court
of Appeals issued its mandate denying petitioner’s appeal thereof). Because 156 days had
elapsed between the date petitioner’s conviction became final and the date he filed his post-

conviction motion, he had not later than June 27, 2017 to file the instant petition. However, he
did not file it until October 15, 2017.
In my October 26, 2017 order, I directed petitioner to show cause why his petition should
not be dismissed as untimely. In response, petitioner does not argue that his petition was in fact
timely. Instead, he asks for “leave for failing to file in a timely manner,” and he states that
“equitable tolling is afforded in extraordinary circumstances and this is one of those instances.”
(Docket No. 5 at 2). In support, petitioner argues that his post-conviction attorney gave him bad
advice regarding when to file the petition, and he also contends that some of his claims rest upon
new evidence.
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires a
federal habeas petition to be filed within one year after the petitioner’s state conviction becomes
final. 28 U.S.C. § 2244(d)(1)(A). Section 2244(d) is subject to equitable tolling in appropriate
cases. Holland v. Florida, 560 U.S. 631, 645 (2010); see also Jihad v. Hvass, 267 F.3d 803, 805
(8th Cir. 2001). There are two tests for determining when equitable tolling is appropriate: (1) if
petitioner was diligently pursuing his rights and “extraordinary circumstances” beyond his
control stood in his way and prevented timely filing, Holland, 560 U.S. at 649, or (2) if the
government’s conduct “lulled” the petitioner into inaction through reliance on that conduct. U.S.
v. Hernandez, 436 F.3d 851, 858 (8th Cir. 2006). Equitable tolling is “an exceedingly narrow
window of relief.” Jihad, 267 F.3d at 805.
Petitioner first contends that his post-conviction attorney told him that he had one year
“to file an appeal in federal court to contest the state appellate court’s decision, which was dated
November 30, 2016, inferring the filing deadline to be November 30, 2017,” and that he “made a

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good-faith effort and acted with due diligence to meet the deadline in accordance with the
information provided by his PCR counsel.” (Docket No. 5 at 1). I will assume, for the sake of
argument, that petitioner was diligently pursuing his rights. However, “attorney negligence is
not an extraordinary circumstance warranting equitable tolling.” Holland, 560 U.S. at 655; see
also Beery v. Ault, 312 F.3d 948, 951 (8th Cir. 2002) (In general, ineffective assistance of
counsel does not warrant equitable tolling). In addition, there is no constitutional right to
counsel in seeking state post-conviction relief. Pennsylvania v. Finley, 481 U.S. 551, 555
(1987).
In Lawrence v. Florida, 549 U.S. 327 (2007), the Supreme Court expressly rejected a
petitioner’s argument that his attorney’s mistake in calculating the limitations period amounted
to extraordinary circumstances justifying equitable tolling. In so holding, the Court wrote:
“[a]ttorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the
postconviction context where prisoners have no constitutional right to counsel.” Id. at 336-37.
The rationale for this conclusion, the Holland Court later explained, is that the mistakes of
counsel are constructively attributed to his or her client, at least in the post-conviction context.
Holland, 560 U.S. at 656.
The Eighth Circuit has also recognized that counsel’s confusion about, or mistake in
calculating, the AEDPA’s statutory provisions does not constitute extraordinary circumstances
external to petitioner justifying equitable tolling:
We agree with those courts that have found that counsel’s
confusion about the applicable statute of limitations does not
warrant equitable tolling. See, e.g., Harris v. Hutchinson, 209 F.3d
325, 330 (4th Cir. 2000) (lawyer’s innocent mistake in interpreting
AEDPA’s statutory provisions does not constitute extraordinary
circumstances external to petitioner justifying equitable tolling);
Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (attorney’s
miscalculation of limitations period not a valid basis for equitable

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tolling).
Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000).
For the foregoing reasons, I conclude that petitioner’s post-conviction attorney’s advice
regarding the statute of limitations does not amount to an extraordinary circumstance justifying
the application of equitable tolling. In addition, petitioner does not allege, nor does the record
suggest, that the state lulled him into inaction, and it cannot be said that petitioner’s failure to file
the instant petition within the one-year AEDPA statute of limitations is attributable to the state.
See Holland, 560 U.S. at 656 (mistakes of counsel are constructively attributed to his or her
client, at least in the post-conviction context).
Petitioner next contends that the untimeliness of his petition should be excused because
some of his claims rest upon new evidence. Plaintiff identifies this evidence as the recanted
deposition testimony of state’s witness William Owens, Jr., and “psychological evaluations by
two doctors” that show petitioner suffered from a mental and emotional disorder that caused
dissociation during the offense. (Docket No. 5 at 1). Petitioner does not identify the doctors or
the reports. Attached to the petition is an April 11, 2011 psychiatric evaluation prepared by one
A.E. Daniel, M.D. (Docket No. 1, Attch. 1 at 2-12), a copy of deposition corrections and a
signature page signed by William Owens, Jr. on April 28, 2014 (Id. at 24-25), a copy of a May
13, 2014 letter to petitioner from his attorney in which the attorney acknowledged receiving
petitioner’s April 25, 2014 letter explaining that his son was recanting his deposition testimony
(Id. at 39), and a copy of a May 13, 2014 letter to petitioner from his attorney, forwarding
Owens, Jr.’s deposition corrections and signature page. (Id. at 41). Petitioner contends that the
evidence was not considered during his state court proceedings because neither his trial attorney
nor his post-conviction attorney submitted it.

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New evidence can sometimes affect the computation of the AEDPA’s limitations period.
See 28 U.S.C. § 2244(d)(1)(D) (statute of limitations does not begin to run until “the date on
which the factual predicate of the claim or claims presented could have been discovered through
the exercise of due diligence”). However, when new evidence was known before the statute of
limitations expired, the statute of limitations is not tolled pursuant to § 2244(d)(1)(D).
Grauberger v. Dooley, 2011 WL 4477323, *5 (D. Minn. Jun. 7, 2011) (citing Jackson v.
Symmes, 2008 WL 1733122, *3 (D. Minn. Apr. 10, 2008)).
Here, petitioner makes no attempt to argue that he was unaware of any of the “new”
evidence before the limitations period expired. In fact, the exhibits petitioner filed support the
conclusion that he knew of the recanted deposition testimony in May 2014 at the latest, as that is
when petitioner’s attorney sent him Owens, Jr.’s corrections and signature page. The exhibits
also document that the psychological evaluation report existed as of April 11, 2011, and
petitioner does not allege that he was unaware of it then. Accordingly, I conclude that the
evidence petitioner identifies as new was actually known to him prior to June 27, 2017, the date
the statute of limitations expired. Therefore, to the extent petitioner seeks to invoke the factual
predicate exception outlined in 28 U.S.C. § 2244(d)(1)(D), he raises no new facts that were not
known to him prior to the expiration of the statute of limitations. Furthermore, petitioner has
alleged no proper grounds for equitable tolling. He has not demonstrated that he was diligently
pursuing his rights and some extraordinary circumstance stood in his way, nor does he allege that
the state lulled him into inaction.
Therefore, for all of the foregoing reasons, I conclude that the petition is untimely, and I
will dismiss it as such.

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I have considered whether to issue a certificate of appealability.

When a federal court

denies a habeas petition on procedural grounds without reaching the prisoner’s underlying
constitutional claims, a certificate of appealability should issue when the prisoner shows that
jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial
of a constitutional right; and (2) whether the court was correct in its procedural ruling. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Here, a plain procedural bar is present, and petitioner has
failed to make an arguable claim for equitable tolling. As a result, petitioner is not entitled to a
certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that petitioner William Allen Owens’s petition for writ of
habeas corpus is DISMISSED. A separate order of dismissal will be entered herewith.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
Dated this 6th day of December, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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