Sherard v. State of Utah

Filing 17

MEMORANDUM DECISION and MEMORANDUM DECISION DISMISSING SECTION 2254 HABEAS PETITION. It is hereby ordered that Petitioner's petition for writ of habeas corpus is DENIED as untimely filed. This case is CLOSED. Signed by Judge Tena Campbell on 10/14/2015. (kpf)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
JAMES P. SHERARD,

ORDER
AND MEMORANDUM DECISION
DISMISSING SECTION 2254
HABEAS PETITION

Petitioner,
v.
STATE OF UTAH,

Case No. 2:13-CV-00298-TC
Respondent.
District Judge Tena Campbell

THIS MATTER IS BEFORE THE COURT on a petition for writ of habeas corpus
filed under 28 U.S.C.S § 2254 (2015). The Court has carefully considered the petition,
the response, the reply, and all relevant rules and statutory provisions. Now being fully
advised, it is the judgment of the Court that Petitioner’s habeas claims are time-barred
under the one-year limitations period set forth in 28 U.S.C.S. § 2244(d)(1) (2015).
Procedural History
On January 23, 1987, Petitioner James Sherard was charged with one count of
criminal homicide, a capital offense; one count of aggravated burglary, a first-degree
felony; one count of aggravated sexual assault, a first-degree felony; and one count of
theft, a second-degree felony. Petitioner pleaded guilty as charged in exchange for the

State’s agreement not to pursue the death penalty. Petitioner did not file any motion to
withdraw his plea.
On October 30, 1987, Petitioner was sentenced to life for homicide; five to life for
aggravated burglary; a mandatory term of fifteen years to life for aggravated sexual
assault; and one-to-fifteen years for theft.

These sentences were ordered to run

consecutively. Id. Petitioner did not appeal and did not file any state post-conviction
petition.
On September 13, 2007, Petitioner filed a motion to correct an illegal sentence,
under Rule 22(e) of the Utah Rules of Criminal Procedure. The motion was denied on
November 15, 2007.
On April 29, 2013, Petitioner filed his current federal petition for writ of habeas
corpus.
Petitioner’s Claims
1.

Ineffective assistance of counsel.

Petitioner alleged:

“My court appointed

counsel failed to apprise me of any alternative other than to plead guilty or find
myself another lawyer because he was not going to defend me any further.
Because of counsels refusel [sic] to defend me any further I plead [sic] guilty out
of fear for my life.”

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2.

Illegal sentence.

Petitioner alleged that his sentence was illegal due to his

counsel’s ineffectiveness, stating, “Due to my court appointed counsels [sic]
ineffectiveness to defend me I plead [sic] guilty and was sentenced to four
consecutive sentences for crimes arising out of a single episode.”
Discussion
PETITIONER’S CLAIMS ARE TIME-BARRED.
A.

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

period of limitation expired. Federal statutory law 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.” 28 U.S.C.S. § 2244(d)(1) (2015). This
applies to all petitions filed after the effective date of the statute. Lindh v. Murphy, 521
U.S. 320, 327 (1997).

The limitation period was enacted in the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”) and generally begins running 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.” 28 U.S.C.S. § 2244(d)(1)(A) (2015).
However, Petitioner’s case became final before the AEDPA went into effect.
State prisoners whose convictions became final before April 24, 1996, when the AEDPA
went into effect, had until April 23, 1997, to file a federal habeas petition. United States

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v. Simmonds, 111 F.3d 737, 744-46 (10th Cir. 1997); see 28 U.S.C.S. § 2244(d)(1)
(2015). Petitioner did not file his federal petition for writ of habeas corpus until April 29,
2013. His petition is sixteen years late.
Petitioner was sentenced on October 30, 1987. Under state rules of 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.
The one-year limitation period may be tolled by time spent pursuing state postconviction relief. 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.” 28
U.S.C.S. § 2244(d)(2) (2015).
In 2007, Petitioner filed a motion to correct illegal sentence, which the state court
denied on November 15, 2007. Petitioner had thirty days to appeal that decision, but did
not. Utah R. App. P. 4(a). The motion to correct illegal sentence qualified as pursuing
state post-conviction relief. See Deal v. McKune, 244 F. App’x 185, 186-87 (10th Cir.
2007) (holding motion for illegal sentence in Kansas tolled limitations period).
Petitioner had until April 23, 1997, to file a federal habeas petition or file a motion for
post-conviction relief that would toll the statute of limitations, but the motion to correct

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illegal sentence was not filed until 2007. The time for filing a timely federal habeas
petition had run out before he filed his motion to correct an illegal sentence.
Tolling does not revive the federal limitations period--i.e., restart the clock at zero;
it can serve only to pause a clock that has not already run. See Fisher v. Gibson, 262
F.3d 1135, 1142-43 (10th Cir. 2001); see also Laws v. LaMarque, 351 F.3d 919, 922 (9th
Cir. 2003); Jackson v. Dormire, 180 F.3d 919, 920 (8th Cir. 1999). Any time between
when Petitioner’s conviction became final and when he filed a collateral state action must
be counted toward the limitation period. Moreover, any time between when the state
action concluded and before his federal petition was filed must also be counted towards
the federal limitation period.
State collateral review tolls only the one-year period; it does not delay its start.
Lee v. Utah, No. 2:12-cv-727, 2013 U.S. Dist. Lexis 139544, at *5-6 (D. Utah Sept. 26,
2013); see Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001); Green v. White, 223
F.3d 1001, 1002-03 (9th Cir. 2000); Harris v. Hutchinson, 209 F.3d 325, 327-28 (4th Cir.
2000). Time that has elapsed after finality (but before filing the state collateral action)
and any time after the appeal period ends upon final state disposition (but before federal
filing) both count against the year. See Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir.
2000) (“The state court’s grant of leave to appeal out of time cannot erase the time period
during which nothing was pending before a state court,” and “the limitations period is

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tolled during the period in which the petitioner could have sought an appeal under state
law.”) (emphasis in original); 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 Smith v. McGinnis, 208 F.3d 13, 16-17
(2d Cir. 2000); Haney v. Addison, 175 F.3d 1217, 1220-21 (10th Cir. 1999).
The motion to correct illegal sentence was denied on November 15, 2007.
Petitioner had until December 30, 2007, to file an appeal, but did not. Petitioner did not
file his federal habeas petition until more than five years later, on April 29, 2013. Even if
the motion to correct illegal sentence could have restarted the time period for filing a
federal petition, this federal petition is still untimely because it was not filed within one
year of denial of the motion to correct illegal sentence and the expiration of the appeal
period.
B.

Petitioner has not established any exceptional circumstances that would
entitle him to equitable tolling of the 1-year limitations period.
Because all the claims raised in the habeas petition are time-barred, they must be

dismissed unless Petitioner can show he is entitled to proceed with an untimely petition.
The one-year limitation period has generally been considered a procedural bar and not a
jurisdictional bar. This means that it can, in the appropriate “exceptional circumstances,”
be equitably tolled. See Gibson, 232 F.3d at 808 (quoting Davis v. Johnson, 158 F.3d
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806, 811 (5th Cir. 1998) (stating one-year limitation period will be equitably tolled only
“in rare and exceptional circumstances”)); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.
1998). To qualify for equitable tolling, the Petitioner must “diligently pursue[] his claims
and demonstrate[] that the failure to timely file was caused by extraordinary
circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.
2000). Other circumstances that would qualify the Petitioner are if the Petitioner is
actually innocent or “actively pursue[d] judicial remedies but file[d] a defective pleading
during the statutory period. Gibson, 232 F.3d at 808.
The Petitioner has the burden to establish that the one-year time limit should not
be applied and that he is entitled to equitable tolling. See Credit Suisse Sec. (USA) LLC
v. Simmonds, 132 S. Ct. 1414, 1420 (2012); Donovan v. Maine, 276 F.3d 87, 93 (1st Cir.
2002); United States v. Saro, 252 F.3d 449, 454, 454 n.7 (D.C. Cir. 2001); 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 alleged actual innocence. Petitioner did not file
any pleading--defective or otherwise--during the statutory pleading period. The
remaining circumstance that would qualify the Petitioner is if he diligently pursued
judicial remedies and the failure to file was “caused by extraordinary circumstances
beyond his control.” Marsh, 223 F.3d at 1220.
The fact that a trial transcript is unavailable is not an automatic ground for

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equitable tolling. See Heinemann v. Murphy, 401 F. App’x 304, 309-10 (10th Cir. 2010).
To qualify for equitable tolling, the lack of a transcript must prevent the Petitioner from
filing within the one-year limitation and the Petitioner must diligently pursue his rights
during that time. See id. at 309-10, 312. The Petitioner did not allege that the lack of a
transcript or that an extraordinary circumstance prevented him from filing a habeas
corpus petition before April 23, 1997. The Petitioner failed to diligently pursue his rights
because he did not file any post-conviction relief before the limitation period expired on
April 23, 1997. Therefore, Petitioner fails to qualify for equitable tolling because he did
not diligently pursue his rights.
Further, the fact that Petitioner is acting pro se and may lack legal knowledge and
expertise is insufficient grounds for equitably tolling the limitation period. See Marsh,
223 F.3d at 1220. In most circumstances, equitable tolling is appropriate only when
external forces--rather than a petitioner’s lack of diligence--account for the failure to
timely file a federal petition. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).
Simple neglect is not sufficient. Gibson, 232 F.3d at 808.
Petitioner has failed to establish that he diligently pursued his federal habeas
claims or that some extraordinary circumstance prevented him from timely filing.
Accordingly, the petition is denied and dismissed with prejudice because it is time-barred

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and no statutory or equitable exceptions apply to extend or excuse the limitations period.
ORDER
IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas corpus is
DENIED as untimely filed.
This case is CLOSED.
DATED: October 14, 2015.
BY THE COURT

_______________________________
JUDGE TENA CAMPBELL
United States District Court

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