Hamilton v. State of Utah et al
Filing
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MEMORANDUM DECISION and ORDER: This Court lacks jurisdiction to consider this second or successive petition. And, it is not in the interest of justice to transfer it to the Tenth Circuit Court of Appeals. It is therefore ordered that this petition is DISMISSED. This case is closed. Signed by Judge David Nuffer on 09/23/2016. (kpf)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
TONY ALEXANDER HAMILTON,
MEMORANDUM DECISION &
DISMISSAL ORDER
Petitioner,
v.
Case No. 2:15-cv-199-DN
SCOTT CROWTHER,
District Judge David Nuffer
Respondent.
THIS MATTER IS BEFORE THE COURT on a petition for writ of habeas corpus filed
under 28 U.S.C.S. § 2241 (2016). Having carefully reviewed the petition’s substance, the Court
determines that Petitioner is not actually challenging the execution of his sentence under § 2241,
but is instead challenging his conviction and sentencing under § 2254. The Court thus treats this
as a § 2254 case in concluding that the petition must be dismissed because it is second or
successive and Petitioner has not sought the Tenth Circuit’s permission to proceed here.
PROCEDURAL HISTORY
In this petition, on grounds of casting himself as a commercial entity and therefore not
subject to laws within the United States, Petitioner tries to challenge his state convictions for
criminal trespass, attempted aggravated murder, aggravated assault, killing a police dog, and
interfering with an arresting officer. The Utah Supreme Court affirmed Petitioner’s convictions.
State v. Hamilton, 70 P.3d 111, 114-124 (Utah 2003).
On September 4, 2003, Petitioner filed in this Court his first federal petition for writ of
habeas corpus, in which he challenged his convictions on a variety of theories. Hamilton v
Chabries, 2:03-CV-757 TS (D. Utah). While that one was pending, he filed a second federal
petition, which the Court consolidated with the first. Hamilton v. Chabries, 2:04-CV-352 TS (D.
Utah Oct. 4, 2004) (consolidation order). The petition in the consolidated case was denied on the
merits and unsuccessfully appealed. Hamilton v. Chabries, No. 2:03-CV-757 (D. Utah May 10,
2006), dismissing appeal, No. 06-4145, 2006 U.S. App. LEXIS 25599, at *3 (10th Cir. Oct. 11).
On March 26, 2015, Petitioner filed his current federal petition for writ of habeas corpus.
ANALYSIS
The petition is successive. Because Petitioner has already filed a habeas-corpus petition
in this Court in the past and it was denied on the merits, Petitioner’s current federal petition is
second or successive. See 28 U.S.C.S. § 2244(a) (2016). Petitioner may not file such a petition
without authorization from the appropriate federal court of appeals.
Id. § 2244(b)(3)(A)
(“Before a second or successive application permitted by this section is filed in the district court,
the applicant shall move in the appropriate court of appeals for an order authorizing the district
court to consider the application.”); see R.9, Rs. Governing § 2254 Cases; In re Cline, 531 F.3d
1249, 1251 (10th Cir. 2008) (citing United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir.
2006)) (“A district court does not have jurisdiction to address the merits of a second or
successive § 2255 or 28 U.S.C. § 2254 claim until [the 10th Circuit] has granted the required
authorization.”).
Petitioner did not obtain authorization from the Tenth Circuit Court of Appeals to file his
second or successive petition. This Court therefore does not have jurisdiction to address its
merits.
Petitioner’s claims here are subject to dismissal.
Petitioner’s claims were not
presented in his prior application, so they must be dismissed if Petitioner (1) is not relying “on a
new rule of constitutional law” that is retroactively applicable or “previously unavailable”; or (2)
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could not have discovered through “due diligence . . . the factual predicate for the claim; and the
underlying facts shown by the evidence would adequately demonstrate that, “but for
constitutional error,” no reasonable factfinder would have found [Petitioner] guilty.” See 28
U.S.C.S. § 2244(b)(2) (2016). Neither of these situations exists here.
The alternative to dismissal: transfer to the Tenth Circuit. When a second or
successive § 2254 petition is filed in a district court without the necessary appellate-court
sanction, it may be transferred under 28 U.S.C.S. §1631 (2016) to the proper court--i.e., the
Tenth Circuit. Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997). However, all
unauthorized successive habeas petitions should not automatically be transferred. This Court
will transfer the matter to the Tenth Circuit only if it determines that “it is in the interest of
justice” to do so. 28 U.S.C.S. § 1631 (2016).
Carefully reviewing the record at hand, this Court determines that it is not in the interest
of justice to transfer this petition to the Tenth Circuit.
First, as discussed above, Petitioner does not meet the statutory standards for
authorization of a second or successive petition. The Tenth Circuit would have no basis to
authorize this petition for consideration by this Court.
Alternatively, his claims are untimely at this point and are ineligible for further
consideration.
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State Convictions. Petitioner was originally sentenced on May 18, 2000. The
Utah Supreme Court affirmed his convictions on May 9, 2003. State v. Hamilton, 2003 UT 22, ¶
1, 70 P.3d 111. Petitioner did not file a petition for writ of certiorari in the United States
Supreme Court, nor did he seek state post-conviction relief. Under the one-year period of
limitation applicable to federal habeas petitions, then, the period expired when Petitioner’s
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ninety-day window in which to petition for certiorari with the Supreme Court closed--i.e.,
August 7, 2003.
Habteselassie v. Novak, 209 F.3d 1208, 1209 (10th Cir. 2000).
And,
Petitioner’s prior federal habeas petitions were ineligible to toll the limitation period. See
Duncan v. Walker, 533 U.S. 167, 172-73 (2001). Petitioner did not file his current federal
habeas petition until April 30, 2015--almost twelve years after the period of limitation had
expired.
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Petitioner fails to show that equitable tolling should apply. “The timeliness
provision in the federal habeas corpus statute is subject to equitable tolling.” Holland v. Florida,
560 U.S. 631, 634 (2010). This means that the one-year time limit can, in the appropriate
exceptional circumstances, be equitably tolled. See also Miller v. Marr, 141 F.3d 976, 978 (10th
Cir. 1998), cert. denied, 525 U.S. 891 (1998).
“’Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.’” Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011) (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). As a result, “equitable tolling is appropriate
only in ‘rare and exceptional circumstances.’” Id. at 1128 (quoting Gibson v. Klinger, 232 F.3d
799, 808 (10th Cir. 2000)); see also York v. Galetka, 314 F.3d 522, 527 (10th Cir. 2003).
Petitioner’s pro se status is an insufficient ground for equitable tolling. So, the fact that a
petitioner did not have professional legal help, did not know what to do, and relied on another
inmate for help, did not show extraordinary circumstances making it impossible to timely file a
petition. Henderson v. Johnson, 1 F.Supp.2d 650, 656 (N.D. Texas 1998); see also Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Petitioner has not suggested, nor can the Court
see, any extraordinary circumstances that warrant equitable tolling.
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CONCLUSION
This Court lacks jurisdiction to consider this second or successive petition. And, it is not
in the interest of justice to transfer it to the Tenth Circuit Court of Appeals.
IT IS THEREFORE ORDERED that this petition is DISMISSED.
This case is
CLOSED.
DATED this 23rd day of September, 2016.
BY THE COURT:
________________________________
CHIEF JUDGE DAVID NUFFER
United States District Court
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