Fleming v. Bigelow
Filing
49
MEMORANDUM DECISION granting 41 Motion to Dismiss. This Petition is denied because it fails to state a claim upon which habeas-corpus relief may be granted, and, alternatively, because it is barred by the applicable period of limitation. Case Closed. Signed by Judge Bruce S. Jenkins on 3/25/13. (jmr)
IN THE UNITED STATES DISTRICT COURTr":"; ::' :\
FOR THE DISTRICT OF UTAHU.S. [;:~: ';;:'C'( COUR 1
CARL STANLEY FLEMING,
MEMORANDUM
Z~t~1f~lJk ; d~JR
GRANTING M0TrJ~¥[\~ 1{.ri$WSS
Pet
ioner,
Case No.
v.
District Judge Bruce Jenkins
ALFRED BIGELOW,
Respondent.
Petitioner, Carl Stanley Fleming, an inmate at Utah State
son, requests habeas-corpus reI
f.l
Respondent moves to
dismiss the Petition, arguing that it was
applicable period of limitation.
led past the
The Court agrees.
BACKGROUND
Petitioner was convicted
one count each of aggravated
robbery and aggravated kidnaping, both
which he was sentenced, respect
life and ten-years-to-life.
rst-degree felonies,
, to terms of five
-to
Petitioner failed to
successfully appeal his convictions, they became final on May 3,
2006--the deadline Petitioner mis
writ of certiora
pet
for fil
a petit
with the United States Supreme Court.
ion was not filed until April 19, 2011.
The Second Amended Petition
habeas relief:
ISee 28 U.S.C.S.
§
2254
(2013).
ses a single ground
for
This
Petitioner's
ghts for access to the courts
were violated when he was not allowed to
adequately address all of his issues in his
rst post-conviction petition, because his
legal material, including his first post
conviction rel f petition, transcripts and
work product material were con seated and
lost by the Department of Corrections.
FEDERAL CONSTITUTIONAL VIOLATION
The Court notes sua sponte that the ground for relief raised
by Petitioner is not proper in this habeas case.
court shall entertain an application
"[A] district
a writ of habeas corpus
in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation
of the Constitution or laws .
. of the United States."2
Here,
Petitioner does not attack as unconstitutional or illegal the
substance of the judgment under which he was convicted or his
sentencing.
If the Court were to grant relief on the ground
stated, it would not necessarily void his conviction or
sentencing, which is the hallmark of a habeas-corpus remedy.
Legal-access claims are generally brought in civil-rights
complaints under
§
1983. 3
In this situation, Petitioner has
already brought this claim (regarding the dismissal of his first
state post-conviction pet
ion as untimely because of the loss or
confiscation by prison personnel of legal materials including his
id. § 2254(a).
3 42
id. § 1983.
2
criminal-trial transcripts) in a civil-rights complaint in this
Court, on which he did not prevail:
[T]he dismissal.of Plaintiff's state court
Petition does not support a legal access
claim.
[T]he Petition was not dismissed
as untimely or on any other technical
grounds; instead, each of Plaintiff's
ims
were addressed and dismissed by the state
court on the merits.
Thus, the dismissal of
the Petition does not show that Plaintiff was
significantly hindered from pursuing a non
frivolous "habeas corpus or civil rights
action[] regarding [his] current
confinement. " Carper v. Deland, 54 F. 3d 613,
616 (10th Cir. 1995). This determination
precludes Plaintiff from pursuing a legal
access claim based on the dismissal of
s
state court Petition. 4
Based on Petitioner's failure to state a claim upon which
habeas-corpus relief may be granted, then,
denied. 5
issue in
s Pet
And, Petitioner has already unsuccess
s proper vehicle--a civil-
ion is
ly raised this
ghts complaint -so the
issue appears to have run its futile course.
PERIOD OF LIMITATION
As an alternative basis for dismissing this Pet
Court
ews its untimeliness.
ion, the
The statute setting forth the
period of limitation for federal habeas petitions reads
pertinent part:
A I-year period of limitation shall apply to
an application for a writ of habeas corpus by
4Fleming v. Clark, No. 2:09-CV-I038 OAK, slip op. at 10 (D. Utah
21, 2012).
R. Civ. P. 12 (b) (6).
3
a person in custody pursuant to the judgment
of a State court. The limitation period shall
run from the latest of.
. the date on
which the judgment became final by the
conclusion of direct review or the expiration
of the time
seeking such review. 6
By statute, the one-year period of limitation is tolled for
"[t]
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.,,7
Meanwhile, equitable
tolling is also available but "'only in rare and exceptional
circumstances.
1 ..
8
1.
STATUTORY TOLLING
At separate times, Petitioner filed two different petitions
for post-conviction relief in state court.
After 264 days of the
365-day federal period of limitation had ticked away, on January
22, 2007, Petitioner filed his
petition.
rst state post-conviction
This petition was denied and taken to the Utah Court
of Appeals, which af
rmed the convictions on November 6, 2008.
Petitioner did not file a petition for writ of certiorari to the
Utah Supreme Court. 9
Therefore, the period of limitation began
running again on December 8, 2008.
U.S.C.S. § 2244 (d) (1)
6 28
.
§
(2013) .
2244 (d) (2).
8Stanley v. McKune, No. 05-3100, 2005 U.S. App. LEXIS 9872, at *4 (10th
Cir. May 23, 2005) (quoting Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.
2000) ) .
9As an aside, the Court notes here that Petitioner did not exhaust his
claim and is now procedurally barred from pursuing it further.
However, the
Court need not
on yet a third basis for denying this Petition.
4
After 23 more days (287 total) had 'passed toward the federal
period of limitation, on December 31, 2008, Petitioner filed his
second state post-conviction
ition.
This was denied and then
affirmed through the appeals process, which ended on October 8,
2010, when the period of limitation began running again.
After
another 78 days passed, on December 27, 2010, the federal period
of limitation expired.
By the time Petitioner filed this federal
petition on April 19, 2011, he had exceeded the period of
limitation by almost four months.
2.
EQUITABLE TOLLING
Petitioner excuses his failure to timely file his petition
by asserting he lacked access to a law library and legal
knowledge, and the prison-contract-attorney system is inadequate
and gave him misinformation about habeas filings.
asserts actual innocence.
He also
Based on these circumstances, he
argues that the Court should apply equitable tolling to rescue
him from the period
"Equitable t
limitation's operation.
ling will not be
lable
most cases, as
extensions of time will only be granted if 'extraordinary
circumstances' beyond a prisoner's control make it impossible to
file a
ition on time."lc
Those situations include times
"'when a prisoner is actually innocent'"
1997)
lOCalderon v. United States Dist.Court,
(citation omitted).
5
or "'when an adversary's
128 F. 3d 1283, 1288
(9th Cir.
conduct--or other uncontrollable circumstances--prevents a
prisoner from timely filing, or when a prisoner actively pursues
judicial remedies but
statutory period. ,,,11
les a
fective pleading during the
And, Petitioner "has the burden of
demonstrating that equitable tolling should apply."
A.
Aga
UNCONTROLLABLE CIRCUMSTANCES
the backdrop of these general principles, the Court
considers Petitioner's specific arguments.
First, Pet
ioner
asserts that his lateness should be overlooked because he lacked
a law library, 1
1 knowledge, and had only limited help and
misinformation from prison contract attorneys.
a prisoner "had inadequate
support equitable tolling. 13
library facilit
The argument that
s" does not
Further, it is well settled that
"'ignorance of the law, even for an incarcerated pro se
pet
ioner, generally does not excuse prompt filing.'
1114
Finally, simply put, "' [t]here is no constitutional right to an
attorney in state post-conviction proceedings.
Consequently, a
lIStanley, 2005 U.S. App. LEXIS 9872, at *4 (quoting Gibson, 232 F.3d at
808 (citation omitted)) .
12Lovato v. Suthers,
(10th Cir. July 15, 2002)
No. 02-1132, 2002 U.S. App. LEXIS 14371, at *5
(unpublished).
13McCarley v. Ward, Nos. 04-7114, 04-7134, 2005 U.S. App. LEXIS 14335,
at *3-4 (10th Cir.
15, 2005); see also Miller v. Marr, 141 F.3d 976, 978
(10th Cir. 1998) (nIt
not enough to say that the . . . facility lacked all
relevant statutes and case law or that the procedure to request specific
materials was inadequate.").
14Marsh v. Soares,
223 F.3d 1217, 1220 (10th Cir. 2000)
omitted) .
6
(citation
petitioner cannot claim constitutionally ineffective assistance
of counsel in such proceedings.
contention
thwarted
,,,15
It follows that Petitioner's
the prison contract attorneys' misinformation
s habeas filings does not toll the period of
limitation. 16
During the running of the federal
beyond, Petitioner took no steps hims
his federal
ims."
riod of limitation and
f to "diligently pursue
In fact, all Petitioner's excuses are
undercut by the fact that he was able to file and pursue in the
appellate process two state post-conviction
time of his conviction and the time he fil
petition.
it ions between the
this
In sum, none of the circumstances rais
ral habeas
by Pet
ioner
rendered it beyond his control to timely file his petition here.
B.
ACTUAL INNOCENCE
lly, the Court addresses Petitioner's contention that
the period of limitation should
innocent.
new,
tolled because he is actually
"[T]o claim actual innocence a petitioner must present
iable evidence that was not presented at trial.
evidence typically consists of 'exculpatory scienti
Such
evidence,
15Thomas v. Gibson, 218 F.3d 1213, 1222 (10th Cir. 2000) (quot
Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citations omitted)); see also
28 U.S.C.S. § 2254(i) (2013) ("The ineffectiveness or incompetence of counsel
Federal or State collateral post-conviction proceedings shall not be a
ground for relief in a proceeding
under section 2254. U ) .
Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) ("An
attorney's miscalculation of the limitations period or mistake is not a basis
for equitable
.").
7
trustworthy eyewitness accounts, or
evidence. ,,,17
tical physical
Further, this evidence must "a
demonstrate [ the pet
rmatively
ioner'sJ innocence," not just "undermine
the finding of guilt against him."IB
After presenting such
evidence, a petitioner must then "show that
evidence,
guil ty.
,"19
light of the new
'no reasonable juror would have found
Such evidence is so very rare, though
defendant
f
that "' in
virtually every case, the allegation of actual innocence has been
summarily
ected. '
,,20
Petitioner's mere rehashing of the evidence and alleged
violations of his civil rights do nothing to convince this Court
that the exception applies.
ndeed, the kernel of the Court's
analysis regarding actual innocence is not whether Petitioner
urgently believes there were errors--or whether there were indeed
errors--in the state proceedings, but whether Petitioner is
factually innocent.
This factual innocence must also be
supported with new evidence, which Petit
17Rose v. Newton
(10th Cir.
. 5, 2006)
324 (1995)), cert.
Cir.
1999)
r has not provided.
No. 05-6245, 2006 U.S.
. LEXIS 22713, at *4-5
(unpublished) (quoting Schlup v. Delo, 513 U.S. 298,
127 S. Ct. 2039 (2007).
18Green v. Kansas, No. 06-3118, 2006 U.S. App. LEXIS 20046, at *8 (10th
. 3, 2006) (quoting Phillips v.
, 182 F.3d 769, 774 (lOth Cir.
(internal citations & quotations omitted)).
19 See Rose, 2006 U.S. App. LEXIS 22713, at *5
at 329).
2oCalderon v. Thompson,
(quoting Schlup, 513 U.S.
523 U.S. 538, 559 (1998)
8
(citations omitted).
C. CONCLUSION
Accordingly, the current petition before the Court was filed
past
one-year period of limitation.
statutory exceptions nor equitable t
And, it appears neither
ling, including
Petitioner's allegation of actual innocence, apply to save
r from t
Petit
period of limitation's operation.
ORDER
IT IS ORDERED that Respondent's motion to dismiss is
GRANTED. 21
This Petition is denied because it fails to state a
claim upon which habeas-corpus reI
f may be granted, and,
alternatively, because it is barred by the applicable period of
limitation.
DATED this
day of March, 2013.
BY THE COURT:
21
(See Docket Entry # 41.)
9
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