Pirela v. Carver et al

Filing 13

MEMORANDUM DECISION DENYING THE HABEAS PETITION, CASE CLOSED. The following motions are DENIED AS MOOT: 4 MOTION to Order Transportation without Petitioner's Cost or Fees and Affidavit of Impecuniosity filed by Petitioner Edwin Mitchell Pirela. (Attachments: # 1 Entering Affidavit of Impecuniosity and Motion) and 8 SEALED motion for release filed by Petitioner Edwin Mitchell Pirela. Signed by Judge Ted Stewart on 8/27/09. (ce)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION _________________________________________________________________ EDWIN MITCHELL PIRELA, ) ) Petitioner, ) Case No. 2:08-CV-651 TS ) v. ) District Judge Ted Stewart ) SCOTT CARVER et al., ) MEMORANDUM DECISION ) Respondents. ) _________________________________________________________________ Petitioner/inmate, Edwin Mitchell Pirela, requested habeas corpus relief in this case.1 Because Petitioner appeared to have

filed his petition past the applicable period of limitation, the Court ordered him to show cause why his petition should not be denied. Petitioner responded, essentially urging the Court to apply equitable tolling to excuse his late filing. Specifically, he

argues that he suffers from brain damage and he was stymied by "lockdowns." "Equitable tolling will not be available in most cases, as extensions of time will only be granted if 'extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time."2 Those situations include times "'when

a prisoner is actually innocent'" or "'when an adversary's conduct--or other uncontrollable circumstances--prevents a

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S e e 28 U.S.C.S. § 2241 (2009).

C a l d e r o n v. United States Dist. Court, 128 F.3d 1283, 1288 (9th Cir. 1 9 9 7 ) (citation omitted).

prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period.'"3 And, Petitioner "has the burden of

demonstrating that equitable tolling should apply."4 Against the backdrop of these general principles, the Court considers Petitioner's particular arguments. First, Petitioner's

contention regarding his mental capacity must fail because it does not involve an external situation. Simply put, Petitioner's

mental status does not implicate an "exceptional circumstance" supporting equitable tolling.5 Next, the Court rejects lockdowns as a basis for equitable tolling. As the Court noted in its Order to Show Cause,

Petitioner did not file his federal challenge to the BOP's rescission of his parole until six years after the decision. Petitioner has not specified the lockdown dates (and surely was not in lockdown for six years straight) and exactly how they thwarted timely habeas filings. During the running of the federal period of limitation and some five years beyond, Petitioner took no steps himself to
S t a n l e y v. McKune, No. 05-3100, 2005 U.S. App. LEXIS 9872, at *4 (10th C i r . May 23, 2005). L o v a t o v. Suthers, No. 02-1132, 2002 U.S. App. LEXIS 14371, at *5 (10th C i r . July 15, 2002) (unpublished). S e e McCarley v. Ward, Nos. 04-7114, 04-7134, 2005 U.S. App. LEXIS 1 4 3 3 5 , at *3-4 (10th Cir. July 15, 2005) (unpublished) (holding assertion of b r a i n damage did not warrant equitable tolling); Biester v. Midwest Health S e r v s . , Inc., 77 F.3d 1264, 1268 (10th Cir. 1996) ("[T]he Tenth Circuit has n e v e r held that mental incapacity tolls the statute of limitations.").
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"diligently pursue his federal claims."

In sum, none of the

circumstances cited by Petitioner qualify as extraordinary, rendering it beyond Petitioner's control to timely file his petition here. IT IS THEREFORE ORDERED that the habeas petition here is DENIED. This case is CLOSED.

IT IS FURTHER ORDERED that the two outstanding motions in this case are DENIED as moot.6 DATED this 27th day of August, 2009. BY THE COURT:

___________________________ TED STEWART United States District Judge

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S e e Docket Entry #s 4 & 8.

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