Robinson v. Colby Braun

Filing 16

ORDER by Magistrate Judge Charles S. Miller, Jr. granting 14 Motion to Dismiss. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Anthony James Robinson,
Petitioner,
vs.
Colby Braun, Warden,
Respondent.

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ORDER

Case No. 1:16-cv-361

Petitioner Anthony James Robinson is an inmate at the North Dakota State Penitentiary
(“NDSP”) in Bismarck, North Dakota. He has filed a “Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody.” The State of North Dakota (“State”) has filed a
“Limited Motion to Dismiss Section 2254 Petition.” The parties have consented to the exercise of
jurisdiction by the undersigned. For the reasons set forth below, the State’s motion to dismiss is
granted, and Robinson’s petition is dismissed with prejudice.
I.

BACKGROUND
Robinson was charged in state district court with the offense of murder. He executed a plea

agreement and entered a guilty plea to this offense on October 20, 2011. (Doc. No. 15-2). He was
sentenced on January 11, 2012, to term of imprisonment of fifty years with twenty-three years
suspended. (Id.). The state district court entered an amended criminal judgment on February 2, 2012.
(Id.). Robinson did not file a direct appeal. (Id.; Doc. No. 15-1).
On December 27 2013, Robinson filed an application for postconviction relief in state district
court. (Doc. Nos. 15-3 and 15-4). See Robinson v. State, 2016 ND 127, 881 N.W.2d 256. The
state district court dismissed the application on motion by the State on January 7, 2016. (Doc. No.
15-3). Its decision was summarily affirmed by the North Dakota Supreme Court in a per curiam

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dated June 30, 2016. Robinson, 2016 ND 127. The mandate was issued on July 29, 2016.
On October 12, 2016, Robinson filed a § 22554 petition with this court.1 On November 30,
2017, the Government filed a motion to dismiss on the ground that the petition was time barred.
Robinson has yet to file a response.
II.

STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the one-year

statute of limitations at 28 U.S.C. § 2244(d)(1) applies to a state prisoner’s application for federal
habeas corpus relief. Johnson v. Hobbs, 678 F.3d 607, 610 (8th Cir. 2012). In this case, pursuant
to § 2244(d)(1)(A), the one-year period began to run on “the date on which the [state court] judgment
became final by the conclusion of direct review or the expiration of the time for seeking such
review[.]” See, e.g., Johnson, 678 F.3d at 610. “Review of a state criminal conviction by the United
States Supreme Court is considered direct review of the conviction.” King v. Hobbs, 666 F.3d 1132,
1135 (8th Cir. 2012) (quoting Smith v. Bowersox, 159 F.3d 345, 347 (8th Cir. 1998)). When the
United States Supreme Court has jurisdiction to review the state court judgment and the petitioner
does not seek such review, the state court judgment becomes final when the petitioner’s time for
requesting a writ of certiorari expires. Gonzalez v. Thaler, 132 S. Ct. 641, 653-54 (2012).
Section 2244(d)(2) provides for the tolling of the one-year statutory period for “[t]he 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[.]” See, e.g., Johnson, 678 F.3d at 610. The
time between the conclusion of direct review of the state court judgment and the filing of an
application for state post-conviction relief counts against the one-year period. Painter v. Iowa, 247

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Robinson neglected to sign the petition that was filed on October 12, 2016. (Doc. No. 2). He remedied this
oversight with a submission of a signed petition on November 14, 2016 (Doc. No. 12).

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F.3d 1255, 1256 (8th Cir. 2001). “A state postconviction action ‘remains pending’ for the purpose
of federal tolling ‘until the application has achieved final resolution through the State’s
postconviction procedures.’” Steen v. Schuetzle, 326 Fed.Appx. 972, 973 (8th Cir. 2009) (quoting
Carey v. Saffold, 536 U.S. 214, 220 (2002)). A postconviction proceeding appealed to the North
Dakota Supreme Court remains pending until the Court issues its mandate. Steen, 326 Fed.Appx.
at 974 (citing Finch v. Backes, 491 N.W.2d 705, 707 (N.D. 1992); N.D.C.C. § 28-05-10).
A pro se prisoner’s habeas petition is deemed filed on the date it is delivered to prison
officials for mailing to the clerk of court. Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th Cir. 1999),
abrogated on other grounds by Riddle v. Kemna, 523 F.3d 850 (8th Cir. 2008). Fed. R. Civ. P. 6(a)
generally governs the calculation of AEDPA time limits. Wright v. Norris, 299 F.3d 926, 927 n.2
(8th Cir. 2002).
III.

DISCUSSION
A.

Application of § 2244(d)(1)(A)

As noted above, Robinson was sentenced on January 11, 2012. An amended judgment of
conviction was filed by the state district court on February 2, 2012. Under state rules of appellate
procedure, Robinson had thirty days in which to file a direct appeal of his conviction with the North
Dakota Supreme Court. N.D. R. App. P. Rule 4(b)(1)(A) (“In a criminal case, a defendant’s notice
of appeal must be filed with the clerk of the supreme court within 30 days after the entry of the
judgment or order being appealed.”). As Robinson did not file a direct appeal, the judgment of
conviction became final for purposes of AEDPA and his one-year window in which to file a § 2254
petition commenced on March 5, 2012. See 28 U.S.C. § 2244(d)(1)(A) (stating in relevant part that
the one-year period began to run upon expiration of the time for seeking direct review). Cf. In re Jose
Carlos Belmont, No. SA–15–MC–856–OG, 2015 WL 12748173, at * 2 (W.D. Tx. Oct. 8, 2015)

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(citing Mark v. Thaler, 646 F.3d 191 (5th Cir. 2011), for the proposition that, when a “state criminal
defendant chose not to file an appeal from his conviction, his conviction becomes final for purposes
of the AEDPA's one-year limitations period thirty days from the date of his sentencing.”). His
deadline for filing a § 2254 petition lapsed on March 5, 2013.
The record reflects that Robinson filed an application for postconviction relief on December
27, 2013, or almost ten months after his one-year window in which to file a § 2254 petition had
closed. As Robinson’s deadline for petitioning this court for habeas corpus relief lapsed well before
he initiated post-conviction proceedings in state district court, his instant petition is time-barred under
AEDPA.2
B.

Equitable tolling

The one-year AEDPA limitations period is subject to equitable tolling in a very narrow range
of cases. Holland v. Florida, 560 U.S. 631, 645 (2010) (“Holland”); Deroo v. United States, 709 F.3d
1242, 1246 (8th Cir. 2013). A petitioner claiming equitable tolling must show “‘(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and
prevented timely filing.” Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). “The diligence required for equitable tolling purposes is reasonable diligence, not maximum
feasible diligence.” Holland, 560 U.S. at 653 (internal quotations and citations omitted).
As previously discussed, the one-year statute of limitations period for Robinson to file his
federal habeas petition ran from June 3, 2012. His deadline file filing a § 2254 lapsed on June 3,

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Even if Robinson could have petitioned the United States Supreme Court for a writ of certiorari despite the fact
that he had not directly appealed his conviction to the North Dakota Supreme Court, his petition would still have been
untimely. Robinson’s conviction was final as of March 5, 2012. Operating under the premise that Robinson had 90-days
thereafter to file a writ of certiorari, the one-year limitation period under AEDPA would have commenced on June 3, 2012,
and lapsed on June 3, 2013, or approximately 6 months before Robinson filed his state petition for postconviction relief.

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2013. Notably, there is nothing in the record to evince that he was diligent in pursuing his rights
during this time period. See Gordon v. Arkansas, 2016 WL 3027276 (8th Cir. 2016) (asserting
petitioner must show reasonable diligence to equitably toll the federal timing rules for filing his
federal habeas petition not his state Rule 37 petition). Likewise, there is nothing in the record to
suggest that the delay was the result of an extraordinary circumstance that prevented timely filing.
Therefore, equitable tolling is not warranted in this case.
C.

Application of Local Rule 7.1

D.N.D. Civ. L.R. 7.1(A)(1) provides that, upon service of the dispositive motion, the adverse
party has 21 days in which to file a response. Respondent filed the motion to dismiss Robinson’s
habeas petition that is now before the court November 30, 2016. Attached to the motion is
certification that respondent mailed a copy of the motion to Robinson on November 30, 2016.
Forty-three days have now lapsed since respondent filed the motion to dismiss and Robinson
has neither filed a response nor requested additional time to prepare his response. The fact that
Robinson is proceeding pro se does not excuse his noncompliance with the rules of civil procedure.
Cody v. Leon, 486 Fed. App’x 644 (8th Cir. 2012) (citing Brown v. Frey, 806 F.2d 801, 804 (8th
Cir.1986). Consequently, under D.N.D. Civ. L.R. 7.1. (F), Robinson’s failure to serve and file a
response with the prescribed time may subject the motion to summary ruling and may be deemed an
admission that the motion is well taken.
III.

CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue only if the applicant

has made a substantial showing of the denial of a constitutional right. When the court has rejected
a petitioner’s claim on the merits, the substantial showing required is that the “petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional

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claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)); see also, United States v. Lambros, 404 F.3d 1034, 1036 -1037
(8th Circ. 2005); Garrett v. United States, 211 F.3d 1075, 1076 -1077 (8th Cir. 2000). When the
court denies a petitioner’s claim on procedural grounds without reaching the merits, the petitioner
must demonstrate that reasonable jurists would find it debatable that a valid claim for the denial of
constitutional rights has been stated and that the district court was correct in its procedural ruling.
Slack, 529 U.S. at 484.
In this case, reasonable jurists would not find debatable the court’s dismissal of Robinson’s
petition on the grounds it is untimely. Consequently, the court will not issue a certificate of
appealability.
IV.

CONCLUSION
Respondent’s Motion to Dismiss (Docket No. 14) is GRANTED the Robinson’s Petition

under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Docket No. 2)
is DISMISSED with prejudice.
IT IS SO ORDERED.
Dated this 19th day of January, 2017.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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