Letsinger v. Steele (TVV)
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by Chief District Judge Thomas A Varlan on 11/4/13. (c/m)(ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
GLEN C. LETSINGER,
Petitioner,
v.
JEWEL STEELE, Warden,
Respondent.
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No.:
3:13-cv-484
(VARLAN/SHIRLEY)
MEMORANDUM
This is a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which
petitioner challenges his Knox County conviction, upon a plea of guilty, for rape of a child.
The Court ordered petitioner to show cause why his petition should not be dismissed as timebarred. See Day v. McDonough, 547 U.S. 198, 209-10 (2006) (district court may sua sponte
dismiss habeas petition as time-barred, after giving petitioner fair notice and an opportunity
to be heard). Petitioner has responded to that order. For the following reasons, the Court
finds that the petition is barred by the one-year statute of limitation. Accordingly, the
petition for the writ of habeas corpus will be DENIED and this action will be DISMISSED
WITH PREJUDICE.
Pursuant to 28 U.S.C. § 2244(d), there is a one-year statute of limitation for state
prisoners to file a habeas corpus petition in federal court; the limitation period generally runs
from the date on which the judgment of conviction became final, with the provision that
"[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 shall not be
counted toward any period of limitation under this subsection." Id. § 2244(d)(2).
Petitioner did not file a direct appeal of his convictions. He did file a petition for postconviction relief, which was denied. The denial of post-conviction relief was affirmed by
the Tennessee Court of Criminal Appeals on February 9, 2012, and the Tennessee Supreme
Court denied petitioner's application for permission to appeal on April 11, 2012. Letsinger
v. State, No. E2011-01511-CCA-R3-PC, 2012 WL 403917 (Tenn. Crim. App. Feb. 9, 2012),
perm. app. denied, id. (Tenn. April 11, 2012).
It is not clear from the record when petitioner's judgment of conviction became final
and the statute of limitation commenced to run. See Payton v. Brigano, 256 F.3d 405, 408
(6th Cir. 2001) (post-conviction petition "merely tolled, rather than reset," the one-year
statute of limitation). Nevertheless, petitioner's post-conviction proceedings concluded on
April 11, 2012, when the Tennessee Supreme Court denied his application for permission to
appeal the denial of post-conviction relief. Petitioner filed his habeas corpus petition with
the U.S. District Court for the Middle District of Tennessee on June 27, 2013, more than one
year after the conclusion of his post-conviction proceedings; the habeas petition was
subsequently transferred to this Court.
In response to the show cause order, petitioner states that he was not aware of the
statute of limitation and that he relied on the advice of another inmate. He offers his apology
for the delay and asks the Court to accept the late-filed habeas petition.
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The Supreme Court has held that equitable tolling of a statute of limitation is available
"in appropriate cases." Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). Petitioner has the
burden of demonstrating that he is entitled to equitable tolling. Allen v. Yukins, 366 F.3d 396,
401 (6th Cir. 2004) (citations omitted). "A habeas petitioner is entitled to equitable tolling
only if two requirements are met. First, the petitioner must establish 'that he has been
pursuing his rights diligently.' And second, the petitioner must show 'that some extraordinary
circumstance stood in his way and prevented timely filing.'" Hall v. Warden, 662 F. 3d 745,
749 (6th Cir. 2011) (quoting Holland v. Florida, 130 S. Ct. at 2562) (holding that counsel's
failure to turn over the trial transcript as well as other documents related to the case and the
prison's restriction on visits to the law library did not entitle petitioner to equitable tolling;
also noting that Holland 's two-part test replaced the five-factor inquiry the Sixth Circuit had
previously set forth in Dunlap v. United States, 250 F.3d 1001, 1004-07 (6th Cir. 2001)).
The fact that petitioner was allegedly unaware of the time limitation for filing his
habeas petition will not afford him relief. "It is well-settled that ignorance of the law alone
is not sufficient to warrant equitable tolling." Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir.
1991); see also Harrison v. I.M.S., 56 F. App'x 682, 685, 2003 WL 173669 *4 (6th Cir.
2003) ("Petitioner's alleged ignorance of legal matters does not demonstrate a lack of
constructive knowledge of the filing deadline."); Miller v. Cason, 49 F. App'x 495, 497, 2002
WL 31164208 *2 (6th Cir. 2002) ("Miller's lack of knowledge of the law does not excuse his
failure to timely file a habeas corpus petition.").
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Petitioner's reliance on an inmate advisor also does not afford him any relief. See,
e.g., Moore v. United States, 438 F. App'x 445, 450 (6th Cir. 2011) (petitioner was not
entitled to equitable tolling where he "provided no evidence that he checked the status of his
appeal before discovering his attorney's failure to file" an appeal); Elliott v. Dewitt, 10 F.
App'x 311, 313 (6th Cir. 2001) ("an attorney's mistake which results in missing the filing
deadline imposed by the AEDPA is not a basis for equitable tolling"). "The doctrine of
equitable tolling is applied sparingly by federal courts," and is typically used "only when a
litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances
beyond that litigant's control." Vroman v. Brigano, 346 F.3d 598, 604 (6th Cir. 2003)
(citations and internal quotations marks omitted).
Petitioner also stresses his actual innocence. The Supreme Court has now held that
"actual innocence, if proved, serves as a gateway" through which a petitioner may obtain
review of constitutional claims even after expiration of the statute of limitations. McQuiggin
v. Perkins 133 S. Ct. 1924, 1928 (2013). In other words, a "convincing actual-innocence
claim" can constitute an exception to the state of limitations if a miscarriage of justice would
otherwise result. Id. at 1931-33. The Supreme Court specifically "underscore[d]" the fact
that "[t]he miscarriage of justice exception ... applies to a severely confined category: cases
in which new evidence show 'it is more likely than not that no reasonable juror would have
convicted the petitioner.'" Id. at 1933 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Petitioner has offered no new evidence to support his claim of actual innocence.
There is nothing in the record, other than petitioner's self-serving statements, to suggest that
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petitioner is innocent of the crime to which he pleaded guilty. Accordingly, petitioner is not
entitled to equitable tolling based upon a claim of actual innocence.
Based upon the foregoing, petitioner is not entitled to equitable tolling of the one-year
statute of limitation and his habeas petition is time-barred. Accordingly, the petition for
habeas corpus relief will be DENIED and this action will be DISMISSED WITH
PREJUDICE. A certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253(c);
Rule 22(b) of the Federal Rules of Appellate Procedure. The Court will CERTIFY that any
appeal from this action would not be taken in good faith and would be totally frivolous. See
Rule 24 of the Federal Rules of Appellate Procedure. The Court will further DENY
petitioner leave to proceed in forma pauperis on appeal.
AN APPROPRIATE ORDER WILL ENTER.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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