Sindar v. Turley et al

Filing 15

MEMORANDUM DECISION - 1 Petition for Writ of Habeas Corpus is DENIED; 7 Motion to Amend/Correct the Petition and 10 Motion for Extension of Time are MOOT. Signed by Judge Dale A. Kimball on 3/6/09. (jwt)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION _________________________________________________________________ ) MEMORANDUM DECISION ) Petitioner, ) ) Case No. 2:08-CV-133 DAK v. ) ) STEVEN TURLEY et al., ) District Judge Dale A. Kimball ) Respondents. ) Magistrate Judge Paul Warner _________________________________________________________________ FRANK L. SINDAR, The habeas petitioner in this case has filed his petition past the applicable period of limitation.1 arguments for equitable tolling are valid.2 And, none of his In fact, several of Petitioner's arguments--e.g., those related to inadequate medical 1 2 See 28 U.S.C.S. 2244(d) (2008). See Stanley v. McKune, No. 05-3100, 2005 U.S. App. LEXIS 9872, at *4 ( 1 0 t h Cir. May 23, 2005) (quoting Gibson v. Klinger, 232 F.3d 799, 808 (10th C i r . 2000)); Lovato v. Suthers, No. 02-1132, 2002 U.S. App. LEXIS 14371, at * 4 - 6 (10th Cir. July 15, 2002) (unpublished); Calderon v. United States Dist. C o u r t , 128 F.3d 1283, 1288 (9th Cir. 1997); see also 28 U.S.C.S. 2254(i) ( 2 0 0 8 ) ("The ineffectiveness or incompetence of counsel during Federal or S t a t e collateral post-conviction proceedings shall not be a ground for relief i n a proceeding arising under section 2254."); Marsh v. Soares, 223 F.3d 1217, 1 2 2 0 (10th Cir. 2000) (stating it is well settled that "'ignorance of the law, e v e n for an incarcerated pro se petitioner, generally does not excuse prompt f i l i n g ' " (citation omitted)); Thomas v. Gibson, 218 F.3d 1213, 1222 (10th Cir. 2 0 0 0 ) ("'There is no constitutional right to an attorney in state postc o n v i c t i o n proceedings. Consequently, a petitioner cannot claim c o n s t i t u t i o n a l l y ineffective assistance of counsel in such proceedings.'" ( q u o t i n g Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citations omitted))); M i l l e r v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) ("It is not enough to say t h a t the . . . facility lacked all relevant statutes and case law or that the p r o c e d u r e to request specific materials was inadequate."). care and legal access--would be better addressed in a civil rights complaint.3 Alternatively, Petitioner's claims were not exhausted in the state courts and would be procedurally defaulted at this point; this makes them ineligible for consideration in this Court.4 IT IS THEREFORE ORDERED that this habeas petition is DENIED. Accordingly, the pending motion to amend/correct petition for writ of habeas corpus and motion for extension of time are MOOT. DATED this 6th day of March, 2009. BY THE COURT: ___________________________ DALE A. KIMBALL United States District Judge 3 See 42 U.S.C.S. 1983 (2008). See 28 U.S.C.S. 2254(b), (c); Picard v. Connor, 404 U.S. 270, 275-76 ( 1 9 7 1 ) ; Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (quoting C o l e m a n v. Thompson, 501 U.S. 722, 735 n.1 (1991)); Knapp v. Henderson, No. 9 7 - 1 1 8 8 , 1998 U.S. App. LEXIS 28232, at *5-10 (10th Cir. Nov. 9, 1998); see a l s o Utah Code Ann. 78B-9-106(1) (2008) (containing Utah's Post-Conviction R e m e d i e s Act, which states, "A person is not eligible for relief under this c h a p t e r upon any ground that . . . (c) could have been but was not raised at t r i a l or on appeal; (d) . . . could have been, but was not, raised in a p r e v i o u s request for post-conviction relief; or (e) is barred by the [oney e a r ] limitation period . . . ."). 4 2

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