Todd v. Bigelow

Filing 42

MEMORANDUM DECISION and ORDER DENYING RECONSIDERATION denying 37 Motion to reconsider, vacate or set aside the dismissal order. Signed by Judge Clark Waddoups on 4/19/2013. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________________________________________
SHAYNE E. TODD,

) MEMORANDUM DECISION & ORDER
) DENYING RECONSIDERATION
Petitioner,
)
) Case No. 2:12-CV-282 CW
v.
)
) District Judge Clark Waddoups
ALFRED BIGELOW et al.,
)
)
Respondents.
)
_________________________________________________________________
Petitioner, Shayne E. Todd, an inmate at Utah State Prison,
requested habeas corpus relief in this case.1

Because Petitioner

had filed his petition past the applicable period of limitation,
the Court denied him.
Petitioner now moves for reconsideration of that decision.
He again urges the Court to apply equitable tolling to excuse his
late filing.

Specifically, he argues that he suffers from mental

disabilities and he lacked the legal help he expected as he
sought post-conviction relief.
As the Court's order denying Petitioner's petition in this
case said, "[e]quitable 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

1

See 28 U.S.C.S. § 2254 (2013).

2

Calderon v. United States Dist. Court, 128 F.3d 1283, 1288 (9th Cir.
1997) (citation omitted).

an adversary's conduct--or other uncontrollable circumstances-prevents a 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

asserts that his lateness should be overlooked because of his
mental disabilities.

This argument fails 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 addresses the allegation that postconviction counsel was/were not helpful.

It is well settled that

"'ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.'"6

Also,

"'[t]here is no constitutional right to an attorney in . . .

3
Stanley v. McKune, No. 05-3100, 2005 U.S. App. LEXIS 9872, at *4 (10th
Cir. May 23, 2005).
4

Lovato v. Suthers, No. 02-1132, 2002 U.S. App. LEXIS 14371, at *5 (10th
Cir. July 15, 2002) (unpublished).
5

See McCarley v. Ward, Nos. 04-7114, 04-7134, 2005 U.S. App. LEXIS
14335, at *3-4 (10th Cir. July 15, 2005) (unpublished) (holding assertion of
brain damage did not warrant equitable tolling); Biester v. Midwest Health
Servs., Inc., 77 F.3d 1264, 1268 (10th Cir. 1996) ("[T]he Tenth Circuit has
never held that mental incapacity tolls the statute of limitations.").
6

Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (citation
omitted).

2

post-conviction proceedings.

Consequently, a petitioner cannot

claim constitutionally ineffective assistance of counsel in such
proceedings.'"7

It follows that Petitioner's contention that

attorney(s) did not adequately help him, allegedly thwarting
timely habeas filings, does not toll the period of limitation.8
Indeed, Petitioner has shown the ability to timely observe his
rights, in both the state direct appeal and post-conviction
cases.
During the running of the federal period of limitation and
well beyond, Petitioner took no steps himself to "diligently
pursue his federal claims."

In sum, none of the circumstances

7

Thomas v. Gibson, 218 F.3d 1213, 1222 (10th Cir. 2000) (quoting 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
during Federal or State collateral post-conviction proceedings shall not be a
ground for relief in a proceeding arising under section 2254.").
8

See 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 tolling.").

3

cited by Petitioner qualify as extraordinary, rendering it beyond
Petitioner's control to timely file his petition here.
IT IS THEREFORE ORDERED that Petitioner's motion for
reconsideration is DENIED.9
DATED this 19th day of April, 2013.
BY THE COURT:

___________________________
CLARK WADDOUPS
United States District Judge

9

(See Docket Entry # 37.)
4