Aggrey v. State of Utah

Filing 16

MEMORANDUM DECISION and ORDER Because the petition is untimely and not entitled to equitable tolling, IT IS ORDERED that Respondent's motion to dismiss is GRANTED; granting 7 Motion to Dismiss. It is further ordered that nay conditions of confinement claims must be brought, it at all, in a separate civil rights complaint. The Clerk of Court must send Petitioner a packet of information about how to file a civil rights complaint, along with a blank form complaint, should Petitioner wish to use it. This case is closed. Signed by Judge David Nuffer on 9/23/2015. (kpf)

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

DOMINIC TABAN AGGREY,

Case No. 2:14-CV-247 DN

Petitioner,

MEMORANDUM DECISION
AND ORDER

v.

District Judge David Nuffer

STATE OF UTAH,
Respondent.

Before the Court are Petitioner’s petition for writ of habeas corpus and Respondent’s
motion to dismiss. (See Docket Entry #s 4 & 7.) After careful review of all pleadings and
parties’ arguments, including Petitioner’s response to the motion to dismiss, (see Docket Entry #
15), this Court concludes that the Petition is untimely. The Court therefore denies the Petition.
BACKGROUND
Petitioner was convicted for drunk driving. On January 20, 2012, he was sentenced in
state court to zero-to-five years. He did not appeal or apply for state post-conviction relief.
Petitioner’s claims are virtually unintelligible and perhaps raise illegal search and seizure
and conditions of confinement in his prison setting.
ANALYSIS
1. THIS PETITION IS UNTIMELY.
Section 2244(d)(1) provides a one-year period of limitation for “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). The one-year limitation period 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.” Id. §2244(d)(1)(A).
Because Petitioner sought no review of his conviction, it became final when the time
expired for him to seek review. He therefore had thirty days from January 20, 2012--or until
February 20, 2012--to file an appeal. He did not; so, the period of limitation began running on
February 20, 2012 and expired on February 20, 2013. This petition was not filed until April 2,
2014. His petition was thus filed more than one year too late.
2. EQUITABLE TOLLING DOES NOT APPLY.
“AEDPA’s one-year statute of limitations is subject to equitable tolling but only in rare and
exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (quotation
marks and citation omitted); see Fisher v. Gibson, 262 F.3d 1135, 1143 (10th Cir. 2001). Those
circumstances include when a “prisoner is actually innocent” or “when 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.” Gibson, 232 F.3d at 808. Petitioner has not suggested any of these exceptions apply.
3. PETITION FAILS TO STATE A CLAIM.
Petitioner’s claims are unintelligible and perhaps have to do with search and seizure
conditions of confinement in prison. In any case, he has not alleged facts or law that call into
question the constitutionality of his drunk driving conviction and sentencing. This is an
alternative ground upon which to dismiss this petition.

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COMPETENCY HEARING
Respondent recently told the Court that, on April 30, 2014, Petitioner was found
incompetent to proceed in a pending state criminal matter. Although Petitioner has no statutory
right to be competent in this federal habeas proceeding, this Court could in its discretion
temporarily stay the case if (1) the petitioner has evidence outside the habeas record, that was
before the state court, that needs to be presented to the district court; (2) the habeas case “could
substantially benefit” from the petitioner’s participation; and (3) there is “reasonable hope” that
the petitioner “will regain competence in the foreseeable future.” Ryan v. Gonzales, 133 S. Ct.
696, 708-09 (2013).
None of these factors lead the Court to issue a stay. The record appears complete as to
the dispositive issue of untimely filing. And the Court needs no further information from
Petitioner to make a ruling here. Finally, the length of Petitioner’s incompetency does not
appear relevant to this determination, which involves what happened more than three years ago.
CONCLUSION
Because the petition is untimely and not entitled to equitable tolling, IT IS ORDERED
that Respondent’s motion to dismiss is GRANTED. (See Docket Entry # 7.)

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IT IS FURTHER ORDERED that any conditions-of-confinement claims must be
brought, if at all, in a separate civil-rights complaint. The Clerk of Court must send Petitioner a
packet of information about how to file a civil-rights complaint, along with a blank-form
complaint, should Petitioner wish to use it.
This case is CLOSED.
DATED this _23rd day of September, 2015.
BY THE COURT:

_________________________________
CHIEF JUDGE DAVID NUFFER
United States District Court

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