Espinosa v. Toole
| Decision Date | 20 July 2011 |
| Docket Number | Case No. CV411-181 |
| Parties | OSCAR ESPINOSA, Petitioner, v. ROBERT TOOLE, Warden, Respondent. |
| Court | U.S. District Court — Southern District of Georgia |
Oscar Espinosa has filed a 28 U.S.C. § 2254 petition challenging his armed robbery conviction, as affirmed by Espinosa v. State, 285 Ga. App. 69 (2007), cert, denied, id. at 69 (Oct. 9, 2007). Doc. 1. Upon preliminary review of his petition under 28 US.C. § 2254 Rule 4, the Court concludes that it must be dismissed as time-barred under 28 U.S.C. § 2244(d)(1).
The Antiterrorism and Effective Death Penalty Act (AEDPA) "imposes a one-year statute of limitations on all federal habeas corpus petitions." San Martin v. McNeil, 633 F.3d 1257, 1265 (11th Cir. 2011). Espinosa thus was required to file his petition within one year of the date his state court judgment of conviction became final. 28 U.S.C. §2244(d)(1)(A); Jimenez v. Quarterman, 555 U.S. 113, 129 S. Ct. 681, 685 (2009). A state criminal judgment becomes final "'on the date on which the [United States] Supreme Court issues a decision on the merits or denies certiorari, or ... on the date on which defendant's time for filing such a petition expires.'" Bond v. Moore, 309 F.3d 770, 773 (11th Cir. 2002) (quoting Kaufmann v. United States, 282 F.3d 1336, 1339 (11th Cir. 2002)); Jimenez, 129 S. Ct. at 685. Here, that date is October 9, 2007 -- the day the U.S. Supreme Court denied certiorari. Espinosa, 285 Ga. App. at 69. Espinosa did not file the instant petition until July 6, 2011, doc. 1 at 7 () - far beyond § 2244(d)(1)(A)'s 365-day limit.
But Wall v. Kholi, __ U.S. __, 131 S.Ct. 1278, 1281 (2011). The attached state habeas trial court record that the Court independently obtained shows that Espinosa filed a state habeas petition on December 12, 2008 -- a fact not disclosed on his § 2254petition here. Doc. 1 at 3.1 426 days thus elapsed between October 9, 2007 (the date his conviction became final) and December 12, 2008.2Hence, Espinosa failed to stop the one-year clock.
But Espinosa cites to a second, "collateral review" motion that he filed in 2010 and that was just recently denied in the state courts. He then additionally cites a somewhat vague Eleventh Circuit case, Estes v. Chapman, 382 F.3d 1237 (11th Cir. 2004), in arguing around the time bar. Doc. 2 at 1. His argument fails, but the vagueness arising from Estes necessitates some explanation.
Again, the one-year limitation period is tolled during the pendencyof 'a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim.' § 2244(d)(2)." Wall, 131 S. Ct. at 1283 (emphasis added). But not every post-conviction filing constitutes a "collateral review" motion, so if what Espinosa later filed fails to qualify as a request for collateral relief, then his second-wave effort fails on those grounds alone.
The Wall Court defined "collateral review" to mean any proceeding, other than a direct appeal, in which a judgment of conviction is in some material way reexamined. Wall, 131 S. Ct. at 1285 (). Collateral review includes, then, a state habeas petition, a petition for a writ of coram noblis, and, in Rhode Island (the state rule reviewed in Wall), a sentence-reduction motion equatable to a Fed. R. Cr. P. 35 motion. Id. at 1284-89. Thus, a collateral review filing need not challenge the lawfulness of the prior judgment, just materially affect it in some way.
But Wall said nothing about the impact of time-gaps between collateral review filings. Other courts have, and the rule is that a latermotion cannot compensate for a fatal (more than one year) gap.3Espinosa tries to get around that by insisting that the State has no time deadline for filing "vacate as void" petitions.4 Doc. 2 at 1-2. And his second, post-conviction state court filing, he reminds, was a motion to "vacate void and illegal sentence." He rested it on the ground that the state had failed to accord him "First Offender" treatment. Id. at 2. And he filed it, he says, on July 26, 2010.5 Id. The online Georgia Court of Appeals docket shows that the state trial court denied the motion6 on October 21, 2010, Espinosa appealed on November 12, 2010, and theappeal was dismissed on June 14, 2011. 2nd Attach. All this, Espinosa argues, restarts the one-year federal limitations clock, thus making his § 2254 petition here timely. Doc. 2.
To that end, he relies on Estes, which held that a § 2254 petitioner's earlier, state-court motion to vacate a void sentence was "properly filed" under § 2244(d)(2), and that tolled the federal one-year limitations period. Estes, 382 F.3d at 1241. Espinosa reasons that he thus could file his "vacate as void" motion anytime. And Estes, he points out, recognizes that as a collateral review filing. Espinosa filed his § 2254 petition here just a month after his "vacate as void" filing was denied. He thus contends that since Estes failed to supply relevant filing dates, it therefore does not rule out later-in-time, collateral review motions. Put all that together, Espinosa concludes, and it wins him a free pass around the time-bar. Doc. 2 at 2-3.
Espinosa is only partially correct. Estes did say that one may file a "vacate as void" motion in state court at any time, Estes, 362 F.3d at 1238, and this Court agrees that it is a "collateral review" filing as defined by Wall. But Estes fails to supply relevant filing dates. And "the only reasonable reading of Estes is that the motion to vacate voidsentence at issue there was filed in the state court before the petitioner's one-year limitation period for filing a § 2254 petition had expired Wetherington v. Benton, 2006 WL 1431595 at * 3 (M.D. Ga. May 23, 2006) (emphasis added).7 Meanwhile, Thompson v. Sec'y, Dep't of Corrs., 595 F.3d 1233 (11th Cir. 2010), which relied upon Estes, reaffirms the rule that so long as a state prisoner timely seeks state collateral review, it does not matter if it that filing was not "authorized" because the wrongstate remedy has been invoked; all that matters is whether that court had jurisdiction to entertain it. Id., 595 F.3d at 1237-39. The state court in Estes did.
Similarly, it appears that the state court hearing Espinosa's second ("vacate as void") collateral review filing also had jurisdiction. But in contrast to what the petitioner did in Estes, Espinosa's federal limitations clock had already ticked past one year when Espnosa filed that second motion. Nor does this Court interpret Estes to mean that he could he "restart" that clock by filing, years after his conviction became final, a second state court filing designed to imitate Estes:
Applying the result in Estes to the factual circumstances here would be contrary to the decision in Webster and would serve to render meaningless the limitations period set forth at § 2244(d)(1) because any person in custody pursuant to the judgment of a Georgia court could circumvent the limitations period with the filing of a motion to vacate a void sentence -- a result certainly not intended by the court in Estes.
Wetherington, 2006 WL 1431595 at * 3; see also DeJesus, 567 F.3d at 943-44 (); Griffith v. Rednour, 614 F.3d 328, 330 (7th Cir. 2010) (); U.S. ex rel. Cannon v. Hardy, 2011 WL 2473666 at * 2 (N.D. 111. Jun. 22, 2011) (petitioner failed to appeal the denial of his 2008 state post-conviction petition's denial, so he ran out the one-year federal clock and did not restart it with his 2010-filed, state habeas petition).8
Accordingly, Espinosa's § 2254 petition here is too late. Nor has he offered any facts to warrant equitable tolling of the limitations period. His § 2254 petition therefore must be DISMISSED. Doc. 1. Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009) (unpublished), the Court discerns no CO A-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1); seeAlexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).
SO REPORTED AND RECOMMENDED this 20th day of July, 2011.
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