Marchet v. Utah State Prison

Filing 16

MEMORANDUM DECISION & ORDER GRANTING MOTION TO DISMISS: granting 11 Motion to Dismiss. It is further ordered that a certificate of appealability is DENIED. The Clerk of Court is directed to CLOSED this action. Signed by Judge Ted Stewart on 02/26/2019. (kpf)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

AZLEN ADIEU FARQUOIT MARCHET,

MEMORANDUM DECISION & ORDER
GRANTING MOTION TO DISMISS

Petitioner,
Case No. 2:17-cv-473 TS
v.
District Judge Ted Stewart
LARRY BENZON,
Respondent.

Petitioner, Azlen Adieu Farquoit Marchet, requests federal habeas-corpus relief. 28
U.S.C.S. § 2254 (2018). Having carefully considered the relevant documents and law, the Court
dismisses the petition as inexcusably untimely. See id. § 2244(d).
FACTS
Based on his Utah rape conviction, Petitioner was sentenced to five-years-to-life. The
Utah Court of Appeals affirmed his conviction, and the Utah Supreme Court denied certiorari on
December 10, 2009. State v. Marchet, 2009 UT App 262, aff’d, 221 P.3d 837 (Utah) (table).
Petitioner had ninety days (by March 10, 2010) to file a petition for certiorari with the United
States Supreme Court, which he did not do.
Petitioner filed two unsuccessful state petitions for post-conviction relief in state court,
starting on October 18, 2011.
This federal habeas petition was filed on May 24, 2017.
ANALYSIS
Federal statute imposes “a 1-year period of limitation . . . to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court.” Id. The period
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generally 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.” Id. That occurred here on March
10, 2010, ninety days after the Utah Supreme Court denied a writ of certiorari, during which
Petitioner could have sought review in the United States Supreme Court. Therefore, Petitioner
would have had until March 10, 2011 to file his federal petition, excepting applicable tolling.
1. Statutory Tolling
By statute, the one-year period may be tolled while a state post-conviction petition is
pending. See 28 U.S.C.S. § 2244(d)(2) (2018) (“The time 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, a “state court petition . . . that is filed following the expiration of the
federal limitations period ‘cannot toll that period because there is no period remaining to be
tolled.’” Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (citation omitted); see also
Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001) (same). Because Petitioner did not
file his state post-conviction case until October 18, 2011, it did not toll AEDPA’s limitation
period, which had already expired nearly seven months before.
2. Equitable Tolling
So, Petitioner has no ground for statutory tolling. He does suggest, though, that equitable
tolling applies based on newly discovered evidence. That would bring his suggestion under the
actual-innocence category.
"Equitable 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." Calderon v. U.S. Dist. Ct., 128 F.3d 1283, 1288 (9th Cir. 1997) (citation

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omitted). Those situations include times "'when a prisoner is actually innocent.’” Stanley v.
McKune, No. 05-3100, 2005 U.S. App. LEXIS 9872, at *4 (10th Cir. May 23, 2005) (quoting
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citation omitted)). And, Petitioner "has
the burden of demonstrating that equitable tolling should apply." Lovato v. Suthers, No. 021132, 2002 U.S. App. LEXIS 14371, at *5 (10th Cir. July 15, 2002) (unpublished).
Evidence of actual innocence proffered must meet all three criteria: (1) new, (2) reliable,
and (3) so probative and compelling that no reasonable juror could find guilt. See Schlup v. Delo,
513 U.S. 298, 324-29 (1995). At the least, the first and third requirements are not met here.
The “newly discovered evidence” Petitioner raises is (1) his case files (allegedly withheld
by his trial counsel) and (2) a transcript. This evidence is not new. Petitioner clearly knew that
there were case files and a transcript all along as his case progressed. Further, he does not
suggest what the case files and transcript contained that would have caught him off guard, nor
how any such information was so probative and compelling that his guilt could not have possibly
been found by a reasonable juror.
Beyond that, Petitioner's mere rehashing of evidence and alleged violations of his civil
rights do not convince the Court that the exception applies. Indeed, the kernel of the Court's
analysis of actual innocence is not whether Petitioner urgently believes there were errors--or
whether there were indeed errors--in state proceedings, but whether Petitioner is factually
innocent. This factual innocence must also be supported with new evidence, which Petitioner has
not provided.

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CONCLUSION
This federal habeas petition was filed past the period of limitation and neither statutory
nor equitable tolling rescue the delay from the limitation period’s operation. IT IS THUS
ORDERED that Respondent’s motion to dismiss with prejudice is GRANTED. (Doc. No. 11.)
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
The Clerk of the Court is directed to CLOSE this action.
DATED February 26, 2019.
BY THE COURT:

____________________________
TED STEWART
United States District Judge

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