Parrish v. Mahoney et al
Filing
14
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 10 in full. The Petition 1 is DISMISSED WITH PREJUDICE as time-barred. Signed by Judge Donald W. Molloy on 7/27/2011. Mailed to Parrish. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FILED
JUL 27 2011
FOR THE DISTRICT OF MONT ANA
MISSOULA DIVISION
GEORGE WILLIAM PARRISH,
)
)
)
)
)
)
)
)
)
)
Petitioner,
vs.
WARDEN MIKE MAHONEY;
ATTORNEY GENERAL OF
THE STATE OF MONTANA,
Respondent.
PATRICK E. DUFFY. CLERK
By-===-c==-===-~
DEPUTY CLERK, "'I SSOULA
CV 11-54-M-DWM
ORDER
------------------------)
Petitioner George Parish applied for a writ of habeas corpus under 28
U.S.C. § 2254. Parish is a state prisoner proceeding pro se. United States
Magistrate Judge Jeremiah C. Lynch entered Findings and Recommendation in
this matter on May 16,2011. He recommended dismissing Parish's petition as
time-barred. Parish requested and was granted an extension to file objections.
June 16, 2011, Parish filed objections. Therefore, he is entitled to de novo review
of those portions of the Findings and Recommendation to which he objected. 28
U.S.c. § 636(b )(1). The portions ofthe Findings and Recommendation not
specifically objected to will be reviewed for clear etTor. McDonnell Douglas
Corp. v. Commodore Bus. Mach.! Inc., 656 F.2d 1309,1313 (9th Cir. 1981).
-1
The Antiterrorism and Effective Death Penalty Act of 1996 sets a one-year
statute of limitations for petitions filed under 28 U.S.C. § 2254. The Montana
Supreme Court denied his petition for post conviction relief on December 6, 2006.
Parish did not file his petition under § 2254 until April 6, 2011.
Parish argues the statute oflimitations should be tolled because the lawyer
he hired to prepare the petition missed the filing deadline and then declined to
represent him. Because Parish took two and one half years to file his petition after
he discovered his attorney missed the deadline, Parish first argues equitable tolling
did not require him to diligently pursue his rights after he discovered the mistake.
Alternatively, Parish argues he diligently pursued his rights.
He points to language the Supreme Court used to describe the standard for
equitable tolling. A state prisoner might be entitled to equitable tolling ifhe
demonstrates "he has been pursuing his rights diligently" and "some extraordinary
circumstances stood in his way." Holland v. Florida,
U.S. _, 130 S.Ct. 2549,
2563 (2010). Parish notes that the language does not specify that diligence must
be exercised after the extraordinary circumstances. The argument misunderstands
the meaning of diligence. Diligence is the "[c]onstant and earnest effort to
accomplish what is undertaken." Oxford English Dictionary,
http://www.oed.com.lviewlEntry/52784(2ded.• 1989) (accessed July 21, 2011).
-2
Assuming his attorney's failure to file a petition was an extraordinary
circumstance that justifies tolling of the statute oflimitations, Parish did not
demonstrate a constant and earnest effort to file his federal petition. After he
discovered his attorney did not file a petition within the deadline, Parish waited
over two years to file his petition. No other extraordinary circumstances justifY the
delay. Equitable tolling is not appropriate.
I find no clear error in Judge Lynch's remaining findings and
recommendations. Accordingly,
IT IS HEREBY ORDERED that Judge Lynch's Findings and
Recommendation (dkt # 10) are adopted in full. The Petition (dkt # 1) is
DISMISSED WITH PREJUDICE as time-barred.
The Clerk of Court is directed to close this matter and to enter by separate
document a judgment in favor of Respondents and against Petitioner.
The Clerk of Court is further directed that a certificate of appealability is
DENIED.
Dated this
-.f...
t~ay ofJuly, 2011.
!
!
-3- \
!
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?