Finch v. Miller
Decision Date | 20 June 2007 |
Docket Number | No. 06-3790.,06-3790. |
Citation | 491 F.3d 424 |
Parties | Roy Alan FINCH, Petitioner-Appellant, v. Thomas J. MILLER, Respondent-Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Before BYE, RILEY, and BENTON, Circuit Judges.
In 1990, Roy Alan Finch was convicted of first degree murder and sentenced to life imprisonment. His conviction was affirmed by the Iowa Court of Appeals, and the Iowa Supreme Court denied further review in 1991. His petition for post-conviction relief was denied in 1998; he did not appeal. Finch filed two later post-conviction petitions, each dismissed by Iowa courts.
His first federal habeas corpus petition, filed in 2001, was dismissed without prejudice for failure to comply with the district court's orders. The present appeal concerns his second habeas petition, filed in 2006, and dismissed by the district court1 as time-barred. Finch asserts that state-created impediments or equitable tolling should render his petition timely. Having jurisdiction under 28 U.S.C. §§ 1291 and 2253, this court affirms.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), "Congress established a 1-year statute of limitations for seeking federal habeas corpus relief from a state-court judgment, 28 U.S.C. § 2244(d), and further provided that the limitations period is tolled while an `application for State post-conviction or other collateral review' is pending." Lawrence v. Florida, ___ U.S. ___, 127 S.Ct. 1079, 1081, ___ L.Ed.2d ___ (2007), quoting 28 U.S.C. § 2244(d)(2). To extend the limitations period, the state post-conviction application must be properly filed. Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ( ). The limitations period also is tolled by a state-created impediment violating the Constitution or federal law. 28 U.S.C. § 2244(d)(1)(B). This court reviews the district court's interpretation of the one-year AEDPA limitation de novo. Walker v. Norris, 436 F.3d 1026, 1029 (8th Cir. 2006); Jackson v. Ault, 452 F.3d 734, 735 (8th Cir.2006) ( ).
By his chronology of tolled periods, Finch calculates that the AEDPA statute of limitations expired March 27, 2000. He contends, however, that his 2006 petition is not time-barred because unconstitutional, state-created impediments prevented timely filing. See 28 U.S.C. § 2244(d)(1)(B) ( ); Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir.2001) () . As impediments restricting access to the courts, Finch points to lack of adequate law library and legal aides to assist in research, as well as his post-conviction counsel's failure to inform him of the right to appeal. See Scheeler v. City of St. Cloud, 402 F.3d 826, 830-31 (8th Cir.2005) ( ).
Concerning Finch's assertion of inadequate library and aides, "prison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring `a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.'" Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), quoting Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). "Moreover, an inmate who alleges an access violation is required to show actual injury." Cody v. Weber, 256 F.3d 764, 768 (8th Cir.2000). Because there is not "an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense." Lewis, 518 U.S. at 351, 116 S.Ct. 2174. In this case, Finch argues inadequacy but fails to "demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim." Id. ( ); see Entzi v. Redmann, 485 F.3d 998, 1005 (8th Cir.2007) ( ).
Finch also claims impediment because his post-conviction counsel failed to inform him of appeal rights after denial of his first post-conviction application in 1998. An impediment to filing, however, must be created by state action. 28 U.S.C. § 2244(d)(1)(B); see Polk County v. Dodson, 454 U.S. 312, 324-25, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (); Holbird v. Armstrong-Wright, 949 F.2d 1019, 1020 (8th Cir.1991) ( ); see also Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir.2005) ( ). Further, this court has "consistently construed Coleman v. Thompson, 501 U.S. [722, 752-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)], as confirming there is no Sixth Amendment right to effective assistance of post-conviction counsel." Id. at 927.
Finch finally contends he is entitled to equitable tolling of the statute of limitations because he has shown diligence through filing three post-conviction actions and because in 2003 he moved for a stay of his first habeas petition.
"To be entitled to equitable tolling, [petitioner] must show (1) that he has been pursing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Lawrence, ___ U.S. ___, 127 S.Ct. at 1085 ( ). "Equitable tolling is proper only when extraordinary circumstances beyond a prisoner's...
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