Everson v. Perry et al

Filing 48

MEMORANDUM DECISION AND ORDER OF DISMISSAL: Petitioner's petition for writ of habeas corpus is dismissed - CASE CLOSED. Signed by Judge Clark Waddoups on 3/5/15 (alt)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
IKE EVERSON,

MEMORANDUM DECISION &
ORDER OF DISMISSAL
Petitioner,
Case No. 2:12-cv-510 CW
v.
District Judge Clark Waddoups

STEVEN TURLEY,
Respondent.

The Court has carefully considered this habeas-corpus petition, see 28 U.S.C.S. § 2254
(2014), Respondent’s answer, Petitioner’s reply, and all relevant rules and statutory provisions.
Now being fully advised, the Court concludes that Petitioner’s claims are time-barred and,
alternatively, are procedurally defaulted with no applicable exception excusing the default. The
Court therefore dismisses the Petition.
Background
After a preliminary hearing--during which the victim, Rebecca, and Petitioner’s cellmate,
Shane Nye, testified--Petitioner pleaded guilty to a charge of forcible sexual abuse. Petitioner
was sentenced on December 17, 1999 to an indeterminate prison term of one-to-fifteen years.
Judgment was entered on December 21, 1999. See State v. Everson, 2009 UT App 352, *1.
Petitioner did not timely appeal.
Direct Appeal. On August 21, 2009, nearly ten years after he was sentenced, Petitioner
filed a notice of appeal alleging that Rebecca had recanted her accusations against Petitioner. In

his docketing statement, Petitioner excerpted a March 16, 1999 interview of the victim’s mother,
Vickie Epperson Everson, by Detective Perry in which Vickie stated, “What I tried to tell ever
since Tuesday to tell you, the detectives, whoever would listen to me, is if [Petitioner] finds out
[Rebecca] lied and that I lied, that we played this game on him, it’s like we made a fool out of
[Petitioner]. And he will hurt us.” Petitioner argued on appeal that Vickie’s statement to
Detective Perry established that she and Rebecca lied to police about Petitioner’s sexual assault
simply as a way of getting him removed from their home. Petitioner further argued that he only
became aware of this evidence on March 5, 2009. On November 27, 2009, the Utah Court of
Appeals summarily dismissed Petitioner’s appeal because it was untimely. Id.
State Post-Conviction Proceedings.

On March 3, 2010, Petitioner petitioned for

determination of factual innocence under Utah Code Ann. § 78B-9-402 (2014). He asserted that
(1) his cellmate, Nye, fabricated his story that Petitioner confessed to sexually assaulting
Rebecca, and Nye falsely testified at the preliminary hearing; (2) the State’s DNA expert was not
credible because his testing methodology was suspect; (3) Vickie confessed to Detective Perry
that she and Rebecca had lied to the detectives so that Petitioner would be removed from their
home; and (4) detectives violated his equal-protection rights when they arrested and charged
him, though the police knew the evidence against him was false.1 The State moved to dismiss
the petition. On January 6, 2011, after oral argument, the post-conviction court granted the

1

In his habeas petition, Petitioner asserts that he also raised a claim of ineffective assistance of counsel. See
Habeas Pet. at 4. But nowhere in his factual innocence petition did Petitioner address a claim of ineffective
assistance. He first raised the issue of ineffective assistance during oral argument before the post-conviction court.
The court indicated that because this issue was not raised in the original petition it would not be considered.

2

State’s motion. On January 27, 2011, the court entered findings of fact and conclusions of law
dismissing the petition. Petitioner did not appeal the post-conviction court’s order of dismissal.
Current Federal Habeas Petition. On June 21, 2012, Petitioner filed this habeas-corpus
petition. (See Docket Entry # 4.) Respondent answered, asking that the petition be dismissed.
(See Docket Entry # 16.) Petitioner replied. (See Docket Entry # 31.)
Petitioner’s Claims
Petitioner raises the following grounds for relief in his habeas petition:
Newly discovered evidence. Petitioner asserts that, after a diligent review of the case
files, he found that Vickie, the victim’s mother, told investigators in 1999 that Petitioner did not
commit the crime here, and has recanted her statements to police implicating Petitioner. See Pet.
for Writ of Habeas Corpus (Habeas Pet.) at 6.
False evidence. Petitioner argues that his Fifth Amendment rights were violated when
the State presented false evidence preventing a fair hearing or trial. While Petitioner never
specifically says what the false evidence is, presumably he means Vickie’s recanted statements
and the preliminary hearing testimony of Rebecca and Nye. Id. at 7-8.
Restraint against liberty against Utah law. Petitioner asserts his continued incarceration
in light of Vickie’s recanted statements, which show that no crime was committed, violates Utah
law. Petitioner does not, however, specify what Utah laws are being violated. Id. at 9.
Ineffective assistance. Petitioner argues that his defense attorney was ineffective by
failing to discover that Vickie confessed that she lied about Petitioner sexually assaulting
Rebecca, and he allowed an innocent person--Petitioner--to plead guilty. Id. at 11.
3

Discussion
As explained below, the Court concludes that this petition must be dismissed because it is
time-barred under the one-year period of limitation, 28 U.S.C.S. § 2244(d)(1) (2014), and all his
claims are, in any event, procedurally defaulted because they were never presented, and cannot
now be presented, to the Utah Supreme Court.
I.

Petitioner’s claims are time-barred.
A. Petitioner did not raise his claims within the one-year limitations period.
Petitioner’s habeas claims are all time-barred because they were raised after the one-year

federal period of limitation expired. The federal statute governing habeas corpus provides that a
one-year period of limitation applies “to an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.” Id. This period runs from “the date on which
the judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review” or “the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.” Id. § 2244(d)(1)(A) & (D).
The one-year limitation period is tolled by time spent seeking state post-conviction relief.
Id. at § 2244(d)(2) (“[T]ime 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.”). However, tolling does not
revive the limitations period--that is, restart the clock at zero; it can only serve to pause a clock
that has not already run. See Jackson v. Dormire, 180 F.3d 919, 920 (8th Cir. 1999). Thus, the
time between when Petitioner’s conviction became final and when he filed his state post4

conviction petition must be counted in the limitation period. State collateral review only tolls the
one-year period; it does not delay its start. See Bingham v. Anderson, 21 F. Supp. 2d 639, 640
(D. Miss. 1998).2
Here, Petitioner’s sentence was entered on December 21, 1999. See Everson, 2009 UT
App 352. Under state appellate procedure, a “notice of appeal . . . shall be filed with the clerk of
the trial court within 30 days after the date of entry of the judgment or order appealed from.”
Utah R. App. P. 4(a). Petitioner did not file an appeal within the thirty-day period. Thus, the
time for seeking appellate review expired on January 20, 2000. Because Petitioner did not seek
collateral review of his conviction and sentence within the one-year period after this date,
Petitioner had until January 20, 2001 to raise any federal habeas claims not based on newly
discovered evidence. His federal habeas petition was not filed until June 21, 2012, eleven-and-ahalf years too late. Therefore, Petitioner’s claims that are not based on alleged newly discovered
evidence of recanted witness statements are time-barred.
Petitioner alleges, however, that it was not until March 5, 2009, that he became aware
that Vickie allegedly lied during her interview with Detective Perry. And he was aware no later
than August 21, 2009, the date on which he filed his untimely notice of appeal, that she had
recanted her statements inculpating Petitioner. Assuming, for the sake of argument, that even
with the exercise of reasonable diligence Petitioner could not have discovered this “new”
2

Time that elapses after finality and before collateral filing, and time that elapses after final collateral
disposition and before federal filing, also counts against the one-year limitation period. See Nino v. Galaza, 183
F.3d 1003, 1006-07 (9th Cir. 1999) (“AEDPA’s statute of limitations is not tolled from the time a final decision is
issued on direct state appeal and the time the first state collateral challenge is filed because there is no case
‘pending’ during that interval.”); see also Haney v. Addison, 175 F.3d 1217, 1220-21 (10th Cir. 1999).

5

evidence before August 21, 2009, his claims are still time-barred. Because the limitation period
for his habeas petition began to run from the date upon which the new evidence was discovered,
see 28 U.S.C. § 2244(d)(1)(D) (2014), Petitioner had one year from August 21, 2009 to raise his
federal habeas claims based on newly discovered evidence.
However, as explained, the “time during which a properly filed application for State postconviction 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). In
Petitioner’s case, he filed a post-conviction petition for determination of factual innocence in
state court on March 3, 2010. Therefore, 194 days of the 365-day limitation period lapsed before
Petitioner’s state post-conviction petition started tolling the limitation period, leaving Petitioner
with 171 days to file a federal habeas petition once the limitation period began to run again. The
post-conviction court dismissed Petitioner’s factual-innocence petition on January 27, 2011.
Petitioner did not seek appellate review of the dismissal order and, therefore, his post-conviction
case ceased pending on February 26, 2011. The following day, the federal limitation period
again began to run and Petitioner had 171 days, or until August 16, 2011, to timely file his
federal habeas petition. His petition was not filed until June 21, 2012, over ten months too late.
Because Petitioner’s claims were not timely raised, they are now time-barred.
B. Petitioner has not established any exceptional circumstances that would entitle
him to equitable tolling of the one-year limitations period.
Because the claims raised in Petitioner’s habeas petition are time-barred, they must be
dismissed unless Petitioner shows that he is entitled to proceed with an untimely petition. The

6

one-year limitation period has generally been considered a procedural bar and not a jurisdictional
bar. This means that it can, in an appropriate exceptional circumstances, be equitably tolled. See
Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998); Davis v. Johnson, 158 F.3d 806, 811 (5th
Cir. 1998) (holding one-year limitation period will be equitably tolled only “in rare and
exceptional circumstances”). However, it is Petitioner’s burden to establish that the one-year
time limit should not be applied and that he is entitled to equitable tolling. See Donovan v.
Maine, 276 F.3d 87, 93 (1st Cir. 2002); Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000);
United State v. Marolf, 173 F.3d 1213, 1218 n.3 (9th Cir. 1999). Petitioner has not met his
burden because he has not argued any legitimate reason that would justify his filing delay.
Equitable tolling is available only when a petitioner meets the “’high hurdle’” of showing
that (1) extraordinary circumstances, (2) beyond the petitioner’s control, (3) made it impossible
for him to file his petition on time. See Henderson v. Johnson, 1 F. Supp. 2d 650, 653 (N.D.
Texas 1998) (citing Calderon v. United States Dist. Court, 128 F.3d 1283, 1288-89 (9th Cir.
1997)); see also Smith v. McGinnis, 208 F.3d 13, 17 (2nd Cir. 2000); Harris v. Hutchinson, 209
F.3d 325, 329-30 (4th Cir. 2000); Sandvik v. United State, 177 F.3d 1269, 1271 (11th Cir. 1999);
Davis, 158 F.3d at 810. Further, the fact that Petitioner is acting pro se and may lack legal
knowledge and expertise is not a sufficient ground for equitably tolling the limitation period. See
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Henderson states that the fact that the
petitioner did not have legal help or knowledge and relied on another inmate’s help did not show
extraordinary circumstances making it impossible to timely file. See Henderson, 1 F. Supp. at
656. In most circumstances, equitable tolling is appropriate only when external forces--not a
7

petitioner’s lack of diligence--account for delay. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.
1999); see also Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).
Still, Petitioner lists four reasons why his habeas petition should not be time barred: (1)
he alleges constitutional violations; (2) his rights were violated when the post-conviction court
did not provide him with its dismissal order; (3) he only discovered the recanted statements in
2009; and (4) his request for appointment of counsel for his habeas case has gone unheeded. See
Habeas Pet. at 14. None of these reasons constitute an extraordinary circumstance beyond
Petitioner’s control that made it impossible for him to timely file his habeas petition.3
First, the mere fact that Petitioner raises issues of constitutional magnitude is not an
“extraordinary circumstance” in federal habeas jurisprudence. Indeed, just about all issues raised
in federal habeas petitions regard the Constitution.
Second, Petitioner has not shown that his rights were violated because he allegedly did
not receive a copy of the state post-conviction court’s order of dismissal. Petitioner knew that
his post-conviction petition had been dismissed on January 6, 2011 because the post-conviction
court stated as much on the record following oral arguments. Moreover, the Certificate of
Service attached to the court’s final order includes Petitioner’s name and address.

3

This

Petitioner never states that he is entitled to equitable tolling because he is actually innocent, although he
indirectly suggests in one of his habeas claims that he is innocent. See Habeas Pet. at 11 (arguing trial counsel was
ineffective for “allowing an innocent man to plea [sic] guilty illegally”). Recently, the Tenth Circuit expressly held
“that, in the equitable tolling context . . ., a sufficiently supported claim of actual innocence creates an exception to
procedural barriers for bringing constitutional claims.” Lopez v. Trani, 628 F.3d 1228, 1230 (10th Cir. 2010), cert.
denied, 132 S. Ct. 307 (2011) (emphasis added). Lopez stresses, however, “that this actual innocence exception is
rare and will ‘only be applied in the extraordinary case.’” Id. at 1231 (quoting Schlup v. Delo, 513 U.S. 298, 321
(1995)). In Petitioner’s case, any claim of actual innocence is insufficiently supported and, thus, does not entitle
him to equitable tolling.

8

establishes at least a presumption that the court’s final order was received by Petitioner. See
Vincent v. City Colleges of Chicago, 485 F.3d 919, 922 (7th Cir. 2007) (“Evidence of mailing is
evidence of delivery.”) (citing Hagner v. United States, 285 U.S. 427 (1932)). Petitioner has not
rebutted this presumption. See In re Farris, 365 F. App’x 198, 200 (11th Cir. 2010) (“The mere
denial of receipt, without more, is insufficient to rebut the presumption.”).

And, even if

Petitioner did not receive the court’s order, he waited over a year--until May 9, 2012--to request
a copy of the order. Petitioner does not explain his lack of diligence.
Third, even if Petitioner did not find Vickie’s recanted statements until 2009, he still
could have timely filed a habeas petition--but he failed to do so.
Finally, as explained, the mere fact that Petitioner is acting pro se is not enough to
warrant equitable tolling of the one-year limitation period. See Marsh, 223 F.3d at 1220.
In sum, Petitioner has not established that he diligently pursued his federal habeas claims
or that some extraordinary circumstance kept him from timely filing his habeas petition. The
habeas petition is time-barred and, consequently, must be dismissed.
II.

Petitioner’s claims are procedurally defaulted.
A. Petitioner’s claims are “technically exhausted” in state court.
A state prisoner seeking federal habeas relief must first exhaust state remedies as to all

claims presented in federal court. See 28 U.S.C.S. § 2254(b) & (c) (2014); Picard v. Connor,
404 U.S. 270, 275 (1971); Miranda v. Cooper, 967 F.2d 392, 397 (10th Cir. 1992). “The
exhaustion requirement is satisfied if the issues have been ‘properly presented to the highest state
court, either by direct review of the conviction or in a postconviction attack.’” Brown v. Shanks,
9

185 F.3d 1122, 1124 (10th Cir. 1999) (quoting Dever v. Kansas State Penitentiary, 36 F.3d 1531,
1534 (10th Cir. 1994)). A petitioner is deemed to have exhausted state remedies if either (1) a
state remedy is no longer available; or (2) all claims asserted in the federal petition have been
presented to the highest state court either on direct appeal or in a state post-conviction
proceeding. Castille v. Peoples, 489 U.S. 346, 351 (1989); Smith v. Atkins, 678 F.2d 883, 884-85
(10th Cir. 1982).
Petitioner’s claims are technically exhausted. First, following summary dismissal of his
untimely appeal by the Utah Court of Appeals, Petitioner never filed a petition for writ of
certiorari with the Utah Supreme Court. Second, the post-conviction court granted the State’s
motion to dismiss, thereby denying Petitioner the relief he sought in his post-conviction petition
for determination of factual innocence. Petitioner did not appeal the post-conviction court’s
order dismissing his post-conviction petition. Therefore, none of the claims Petitioner raises in
his habeas petition were presented to the highest state court.
“Section 2254(b) requires habeas applicants to exhaust those remedies ‘available in the
courts of the State.’ This requirement, however, refers only to remedies still available at the
time of the federal petition.” Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982) (citing Humphrey v.
Cady, 405 U.S. 504, 516 (1972)) (emphasis added).

It follows, therefore, that a “habeas

petitioner who has defaulted his federal claims in state court meets the technical requirements for
exhaustion [because] there are no state remedies any longer ‘available’ to him.” Coleman v.
Thompson, 501 U.S. 722, 732 (1991). In Petitioner’s case, all his federal claims defaulted in
state court because they were never presented to the Utah Supreme Court.
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Moreover, state court remedies are no longer available to Petitioner. The post-conviction
court’s final order was entered January 27, 2011. Under the Utah Rules of Appellate Procedure,
Petitioner had thirty days, or until February 27, 2011, to appeal the court’s order. See Utah R.
App. P. 4(a) (stating “notice of appeal . . . shall be filed with . . . trial court within 30 days after
the date of entry of the judgment or order appealed from”). Under Utah’s Post-Conviction
Remedies Act, the substance of Petitioner’s federal claims is time-barred in state court, including
his claim based on newly discovered evidence, because those claims were not brought within the
one-year limitations period. See Utah Code § 78B-9-107 (2014) (setting forth triggers for
running of one-year statute of limitations).

Therefore, all Petitioner’s habeas claims are

“technically exhausted” because there are no longer any state remedies available for him to seek.
B. Petitioner’s claims are procedurally defaulted in federal court.
“Where the reason a petitioner has exhausted his state remedies is because he has failed
to comply with a state procedural requirement for bringing the claim, there is a further and
separate bar to federal review, namely procedural default.” Parkhurst v. Shillinger, 128 F.3d
1366, 1370 (10th Cir. 1997); see also Coleman, 501 U.S. at 750 (holding, when federal claim is
defaulted in state court based on independent and adequate state procedural rule, federal review
of claim is barred unless petitioner can show cause for default and actual prejudice). Here, all
Petitioner’s federal claims were defaulted in state court on the basis of an independent and
adequate state procedural rule.
First, regarding his criminal matter, Petitioner was sentenced on December 21, 1999. See
Everson, 2009 UT App at *1. State appellate procedure gave him thirty days from that date, or
11

until January 21, 2000, to file a notice of appeal. See Utah R. App. P. 4(a). His notice of appeal,
however, was not filed until August 21, 2009, nearly ten years after his sentence became final.
In dismissing Petitioner’s untimely attempt to appeal, the Utah Court of Appeals cited state
appellate rules and asserted that a “notice of appeal must be filed ‘with the clerk of the trial court
within 30 days after the date of entry of the judgment or order appealed from.’ If an appeal is
not timely filed, this court lacks jurisdiction to hear the appeal and must dismiss.” Everson, 2009
UT App at ¶ 1 (quoting Utah R. App. P. 4(a)). The Court of Appeals then concluded, “Because
[Petitioner] did not timely file his notice of appeal, this court lacks jurisdiction to hear the appeal
and must dismiss.” Id.
Second, regarding Petitioner’s factual-innocence petition, the post-conviction court’s
final dismissal order was entered January 27, 2011. Again, Petitioner had thirty days, or until
February 26, 2011, to appeal the order. Petitioner did not file any notice of appeal. Therefore,
similar to the filing of his late notice of appeal seeking direct review of his criminal case, any
attempt by Petitioner now to appeal the post-conviction court’s dismissal order would be meet
the same response--i.e., the notice of appeal is untimely under state procedural rules and must be
dismissed for lack of jurisdiction.
Finally, Petitioner cannot now file a state collateral action with the claims in his federal
petition. Under Utah’s Post-Conviction Remedies Act (PCRA), Petitioner must file a postconviction petition “within one year after the cause of action accrue[s].” Utah Code Ann. § 78B9-107(1) (2014). Here, his cause of action accrued on “the last day for filing an appeal from the
entry of the final judgment of conviction, if no appeal is taken” or on “the date on which
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petitioner knew or should have known, in the exercise of reasonable diligence, of evidentiary
facts on which the petition is based.” Id. § 78B-9-107(2)(a), (e). Because Petitioner did not
timely appeal his final judgment of conviction, entered December 21, 1999, the state postconviction limitations period began running January 20, 2000. Thus, his post-conviction petition
under PCRA was due no later than January 20, 2001. Because PCRA’s tolling provisions do not
extend the limitations period to a point when he can timely file a post-conviction petition,
Petitioner would now find any attempt to file a state collateral action time-barred.
In addition, any claim relying on the alleged newly discovered evidence of Vickie’s
recanted statements is also time-barred. As explained above, Petitioner knew the evidentiary
facts supporting his recantation claim no later than August 21, 2009--the date on which he filed
an untimely notice of appeal raising the recanted-statements claim. That means Petitioner had
until August 21, 2010 to file a petition for post-conviction relief under PCRA. Again, because
none of PCRA’s tolling provisions have extended the limitations period to a point when he can
timely file a post-conviction petition based on newly discovered evidence, any attempt to file a
state collateral action now on such a claim would be time-barred in state court.
C. Petitioner has not established any exception to the procedural default.
It is well established that Petitioner’s procedural default may be excused only if he “’can
demonstrate cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.’” Dulin v. Cook, 957 F.2d 758, 760 (10th Cir. 1992) (quoting Coleman,
501 U.S. at 750).

The exception is satisfied, and Petitioner may pursue his procedurally
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defaulted claims, only if both prongs are met. That is, he must establish both cause for failing to
present his claims to the Utah Supreme Court, and prejudice. To manifest “cause,” “Petitioner
must show that ‘some objective factor external to the defense’ impeded his compliance with
Utah’s procedural rules.” Id. (citation omitted). “As for prejudice, a petitioner must show ‘not
merely that the errors of the trial created a possibility of prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.’” Richie v. Sirmons, 563 F. Supp. 2d 1250, 1272 (N.D. Okla. 2008) (quoting United
States v. Frady, 456 U.S. 152, 170 (1982)), aff’d sub nom. Richie v. Workman, 599 F.3d 1131
(10th Cir. 2010). Petitioner has not shown that his procedural default should be excused.
Petitioner has not alleged cause for failing to timely raise his claims on direct appeal to
the Utah Supreme Court. Further, his argument that he did not appeal to the Utah Supreme
Court from the order dismissing his factual-innocence petition because the post-conviction court
allegedly did not send him the order is unavailing. Again, Petitioner knew his post-conviction
petition had been dismissed on January 6, 2011 because the post-conviction court stated as much
on the record following oral arguments. Moreover, the Certificate of Service attached to the
court’s final order includes Petitioner’s name and address. Thus, the presumption exists that the
court’s final order was received by Petitioner. Petitioner does not rebut this presumption.
Finally, even knowing the court had dismissed his factual-innocence petition, Petitioner still
waited until May 9, 2012, over a year later, to request a copy of the court’s final order. Had
Petitioner been more diligent, he could have requested a copy earlier and timely sought state
appellate review of the post-conviction court’s order. For these reasons, Petitioner has not
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established cause for failing to raise his claims to the Utah Supreme Court. And, Petitioner may
not proceed with his defaulted claims in federal court.
The United States Supreme Court has also stated “that in an extraordinary case, where a
constitutional violation has probably resulted in the conviction of one who is actually innocent, a
federal habeas court may grant the writ even in the absence of a showing of cause for the
procedural default.” Murray v. Carrier, 477 U.S. 478, 496 (1986). The miscarriage-of-justice
exception is concerned with actual innocence. Calderon v. Thompson, 523 U.S. 538, 559 (1998).
To be plausible, an actual-innocence claim must be grounded on solid evidence not adduced at
trial. Id. Such evidence is so rare that, “‘in virtually every case, the allegation of actual
innocence has been summarily rejected.’” Id. (quoting Schlup v. Delo, 513 U.S. 298, 324
(1995)). Petitioner does not establish his actual innocence nor, therefore, that the miscarriage of
justice exception should apply.
First, Petitioner never argues that he is actually innocent of the crime he pleaded guilty
to. Rather, he merely indirectly suggests he is innocent in one of his habeas claims. See Habeas
Pet. at 11 (arguing trial counsel ineffective for letting “innocent man . . . plea [sic] guilty
illegally”). But even had Petitioner affirmatively asserted that he is actually innocent, a mere
assertion is insufficient. See Wright v. Clark, 96 F. Supp. 2d 757, 760 (N.D. Ill. 2000) (“A
petitioner’s bald and unsupported assertion of innocence is not enough to give rise to the
supposition that he is actually innocent. He instead must point to ‘actual proof of the allegations
going beyond mere unsupported assertions.’”) (quoting Prewitt v. United States, 83 F.3d 812,
819 (7th Cir.1996)); see also Christensen v. Hines, 8 F. App’x 864, 867 (10th Cir. 2001)
15

(“[Petitioner’s] mere assertion of an actual innocence claim is not sufficient grounds for
equitable tolling.”).
Second, the evidence Petitioner alludes to--i.e., Vickie’s recanted statement--is also
insufficient to establish actual innocence. Though Petitioner states that “the alleged victims”
recanted their testimony, Habeas Pet. at 6 (emphasis added), Petitioner presents no evidence
from Rebecca herself that she recanted her police-interview statements or her preliminaryhearing testimony. Vickie’s recantation might be useful, if at all, for impeachment purposes, but
this is insufficient to establish that Petitioner is actually innocent. “While inconsistent testimony
casts doubt on the testimony of the victim, inconsistent testimony does not show that [the
defendant] was actually innocent of the crime.” Phillips v. Ferguson, 182 F.3d 769, 775, n.6
(10th Cir. 1999); see also Clayton v. Gibson, 199 F.3d 1162, 1180 (10th Cir. 1999) (indicating
impeachment evidence insufficient to establish actual innocence); Ballinger v. Kerby, 3 F.3d
1371, 1375 (10th Cir. 1993) (stating evidence that would “significantly impeach” petitioner’s
“primary

accuser”

insufficient

to

meet

fundamental-miscarriage-of-justice

exception).

Therefore, Petitioner has not validly suggested that he is actually innocent.
Petitioner fails to establish any exception applies that would let this Court review his
procedurally defaulted claims. He has not shown cause and prejudice or that a fundamental
miscarriage of justice will occur if the claims are not reviewed.
therefore barred.

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Further consideration is

Conclusion
Petitioner’s claims are time-barred because they were raised beyond the one-year
limitations period set forth in 28 U.S.C.S. § 2244(d) (2014). But even if claims were timely
raised, none of them were ever presented to the Utah Supreme Court and, therefore, they are
procedurally defaulted. And, Petitioner has not shown that any exception excuses the default.
ORDER
IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas corpus is
dismissed because his claims are both untimely and procedurally defaulted.
This case is CLOSED.
DATED this 5th day of March, 2015.
BY THE COURT

________________________________________
JUDGE CLARK WADDOUPS
United States District Court

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