Strong v. Cassady

Filing 7

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioner Eric E. Strongs 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 Henry Edward Autrey on 1/10/18. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ERIC E. STRONG,
Petitioner,
v.
JAY CASSADY,
Respondent.

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No. 4:17CV2745 HEA

OPINION, MEMORANDM AND ORDER
This matter is before the Court upon petitioner Eric E. Strong’s response to this Court’s
November 27, 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 the doctrine of
equitable tolling is inapplicable. I will therefore dismiss the petition without further proceedings.
Background
As set forth in detail in my November 27, 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
December 19, 2014.

The limitations period was tolled from February 20, 2015 (the date

petitioner filed his motion for post-conviction relief) through December 15, 2016 (the date the
Missouri Court of Appeals issued its mandate denying petitioner’s appeal thereof). 1 Because 63

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The November 27, 2017 Order indicates that the Missouri Court of Appeals issued its mandate on December 21,
2016. This was a clerical error that does not affect the conclusion that the petition was untimely filed.

days elapsed between the date petitioner’s conviction became final and the date he filed his postconviction motion, the instant petition was due to be filed in this Court not later than October 13,
2017. However, petitioner did not file it until November 15, 2017, more than one month later.
In my November 27, 2017 Order, I directed petitioner to show cause why his petition
should not be dismissed as untimely. In response, petitioner avers that he received a letter from
his “former court-appointed assistant public defender of the Appellate/PCR Division of the
Public Defender System of the city of St. Louis,” informing him that the Missouri Court of
Appeals issued the mandate in his post-conviction appeal on December 15, 2016. (Docket No. 6
at 1). Petitioner argues that “the letter expresses my federal writ for habeas relief would be
December 17, 2017,” and that he filed his petition “in this Court on November 17, 2017, which
is one whole month ahead of my one year limitation deadline.” Id. Petitioner attached a copy of
a December 16, 2016 letter signed by District Defender Gwenda Robinson, informing petitioner
that that the mandate was issued in his case on December 15, 2016, and advising him that if he
wished to pursue federal habeas relief, he “must do so within the time limitations specified in my
letter to you dated November 28, 2016.” (Docket No. 6, Attch. 1).
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). Petitioner is correct that he filed the instant petition within
one year of the date the Missouri Court of Appeals issued its mandate in his post-conviction
appellate proceedings. However, petitioner fails to recognize that the 63 days that elapsed
between the date his conviction became final and the date he filed his motion for post-conviction

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relief count against the one-year limitations period. Totaling that 63-day period with the 335-day
period that elapsed subsequent to the conclusion of post-conviction appellate review, the sum of
398 days elapsed prior to the filing of the instant petition. Accordingly, the petition was
untimely filed under the provisions of § 2241(d)(1)(A).
In appropriate cases, § 2244(d) is subject to equitable tolling. 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.
In this case, petitioner can be understood to argue that his post-conviction attorney
implied that petitioner had one year from the date the Court of Appeals issued its mandate within
which to seek federal habeas review. I will assume, for the sake of argument, that petitioner was
diligently pursuing his rights. However, even if petitioner’s attorney had expressly stated that
petitioner had until December of 2017 to file his habeas petition, “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).

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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
tolling).
Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000).
To the extent petitioner can be understood to argue that his post-conviction attorney gave
him bad advice regarding the statute of limitations, this 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

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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). Therefore,
for all of the foregoing reasons, I conclude that the petition is untimely, and I will dismiss it as
such.
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 Eric E. Strong’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 10th day of January, 2018

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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