Collum v. Benzon
Filing
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MEMORANDUM DECISION & ORDER Granting Motion to Dismiss Habeas Corpus Petition : granting 16 Motion to Dismiss. It is ordered that the petition is DENIED and Respondent's motion to dismiss is granted. It is further ordered that a certificate of appealability is DENIED. This action is CLOSED. Signed by Judge Robert J. Shelby on 02/25/2019. (kpf)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
RICHARD BRIAN COLLUM,
Petitioner,
MEMORANDUM DECISION & ORDER
GRANTING MOTION TO DISMISS
HABEAS-CORPUS PETITION
v.
Case No. 2:17-CV-892-RJS
LARRY BENZON,
District Judge Robert J. Shelby
Respondent.
Petitioner, Richard Brian Collum, petitions for federal habeas relief. 28 U.S.C.S. § 2254
(2018). The Court has carefully considered the relevant documents and law. Now being fully
advised, the Court concludes that Petitioner’s petition is inexcusably untimely. See 28 id. §
2244(d)(1). The Court therefore DISMISSES the petition with prejudice.
ANALYSIS
Federal law 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.” 28 id. §
2244(d)(1). The period generally runs from the day “the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.” Id. Petitioner
did not appeal.
Utah requires a notice of appeal to be filed “within 30 days after the date of entry of the
judgment or order appealed from.” Utah R. App. P. 4(a). “Failure to timely file an appeal …
constitutes a waiver of the right to appeal.” State v. Houskeeper, 2002 UT 118, ¶ 23.
Petitioner’s judgment was entered July 8, 2010. The last day he could have filed a timely
notice of appeal was thirty days later--August 9, 2010. By statute, that is the day Petitioner’s
conviction became final. The federal one-year limitation period began running on that date and
expired on August 9, 2011. Petitioner filed his petition here on November 28, 2017, more than
six years too late.
A. 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 law provides that “[t]he 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.” Id. 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 June 24, 2013, it did not toll AEDPA’s
limitation period, which had already expired nearly two years before.
B. Equitable Tolling
So, Petitioner has no ground for statutory tolling. He does, however, offer arguments for
equitable tolling. He suggests that he was not told he could appeal; lacked legal resources; did
not initially realize he may have a claim; was delayed by the allegedly state-created impediment
of contract-attorney lack of help; and is actually innocent.
"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
omitted). Those situations include times "'when a prisoner is actually innocent'" or "'when an
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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.'" 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. 02-1132, 2002 U.S. App. LEXIS 14371, at *5 (10th Cir. July 15, 2002)
(unpublished).
1. Extraordinary or Uncontrollable Circumstance
Petitioner has generally "failed to elaborate on how [his] circumstances" affected his
ability to bring his petition earlier. Johnson v. Jones, No. 08-6024, 2008 U.S. App. LEXIS 8639,
at *5 (10th Cir. April 21, 2008). For instance, he has not identified how, between August 9, 2010
and November 28, 2017, he was continually and thoroughly thwarted by uncontrollable
circumstances from filing. Nor has he detailed who and what would not allow him to file some
kind of petition. He also does not hint what continued to keep him from filing in the more than
six years beyond the limitation period or how extraordinary circumstances eased to allow him to
file this habeas-corpus petition on November 28, 2017. Such vagueness is fatal to his contention
that extraordinary circumstances kept him from a timely filing.
Still, Petitioner asserts that his lateness should be overlooked because he lacked legal
resources, legal knowledge, and had only limited help and misinformation from prison contract
attorneys. However, the argument that a prisoner "had inadequate law library facilities" does not
support equitable tolling. McCarley v. Ward, Nos. 04-7114, 04-7134, 2005 U.S. App. LEXIS
14335, at *3-4 (10th Cir. July 15, 2005); see also Miller v. Marr, 141 F.3d 976, 978 (10th Cir.
1998) ("It is not enough to say that the . . . facility lacked all relevant statutes and case law or
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that the procedure to request specific materials was inadequate."). Further, it is well settled that
"'ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse
prompt filing.'" Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (citation omitted).
Finally, simply put, "'[t]here is no constitutional right to an attorney in state post-conviction
proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of
counsel in such proceedings.'" Thomas v. Gibson, 218 F.3d 1213, 1222 (10th Cir. 2000)
(quoting Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citations omitted)); see also 28
U.S.C.S. § 2254(i) (2017) ("The ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a ground for relief in a proceeding
arising under section 2254."). It follows that Petitioner's contention that the prison contract
attorneys' misinformation and lack of help thwarted his habeas filings does not toll the period of
limitation. See Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) ("An attorney's
miscalculation of the limitations period or mistake is not a basis for equitable tolling.").
Petitioner has not met his burden of showing that--during the running of the federal
period of limitation and well beyond--he faced extraordinary circumstances that stopped him
from timely filing or took specific steps to "'diligently pursue his federal claims.'" Id. at 930.
Petitioner thus has not established this first basis for equitable tolling.1
Also, the “continuing wrong doctrine” Petitioner raises is inapplicable here. Petitioner appears to look at his
ongoing incarceration--after alleged breaches of his constitutional rights--as the continuing wrong. But, first, he has
never been able to prove that his rights were breached because of his untimely litigation of his claims. And, second,
the alleged breaches took place during the time he was actively litigating his case; enough time has gone by since
that active litigation that the period of limitation cut off his rights to litigate them further. His continued
incarceration is therefore appropriate and not a “continuing wrong.” Finally, such a doctrine would always thwart
the period of limitation and thus makes no sense.
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2. Actual Innocence
Equitable tolling is also available “when a prisoner is actually innocent.” Gibson, 232
F.3d at 808 (citing Miller, 141 F.3d at 978). And, the 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). The first
requirement is not met here.
The “newly discovered evidence” Petitioner raises appears to be primarily the fact that a
rape kit was done on the victim and did not implicate him. This evidence is not new. Petitioner
clearly knew the rape kit existed at least by February 20, 2010, when he wrote a letter saying he
would not pay for the rape-kit analysis as was requested. (Doc. No. 21-5, at 7.) That was before
he was convicted.
There is no other new evidence here either. Petitioner's mere rehashing of the evidence
and alleged violations of his civil rights do not convince this Court that the exception applies.
Indeed, the kernel of the Court's analysis regarding actual innocence is not whether Petitioner
urgently believes there were errors--or whether there were indeed errors--in the state
proceedings, but whether Petitioner is factually innocent. This factual innocence must also be
supported with new evidence, which Petitioner has not provided.
CONCLUSION
Having established that tolling does not apply here, the Court concludes that the
limitation period expired on August 9, 2011--more than six years before this petition was filed on
November 28, 2017. With no extraordinary circumstances deterring him from diligently pursuing
his federal habeas claims, Petitioner inexcusably let his rights lie fallow for years. Petitioner's
claims are thus inexcusably untimely.
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IT IS ORDERED that the petition is DENIED and Respondent’s motion to dismiss with
prejudice is GRANTED. (Doc. No. 16.)
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
This action is CLOSED.
DATED this 25th day of February, 2019.
BY THE COURT:
____________________________
CHIEF JUDGE ROBERT J. SHELBY
United States District Court
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