Everson v. Turley
| Decision Date | 05 March 2015 |
| Docket Number | Case No. 2:12-cv-510 CW |
| Parties | IKE EVERSON, Petitioner, v. STEVEN TURLEY, Respondent. |
| Court | U.S. District Court — District of Utah |
The Court has carefully considered this habeas-corpus petition, see 28 U.S.C.S. § 2254 (2014), Respondent's answer, Petitioner's reply, and all relevant rules and statutory provisions. Now being fully advised, the Court concludes that Petitioner's claims are time-barred and, alternatively, are procedurally defaulted with no applicable exception excusing the default. The Court therefore dismisses the Petition.
After a preliminary hearing—during which the victim, Rebecca, and Petitioner's cellmate, Shane Nye, testified--Petitioner pleaded guilty to a charge of forcible sexual abuse. Petitioner was sentenced on December 17, 1999 to an indeterminate prison term of one-to-fifteen years. Judgment was entered on December 21, 1999. See State v. Everson, 2009 UT App 352, *1. Petitioner did not timely appeal.
Direct Appeal. On August 21, 2009, nearly ten years after he was sentenced, Petitioner filed a notice of appeal alleging that Rebecca had recanted her accusations against Petitioner. Inhis docketing statement, Petitioner excerpted a March 16, 1999 interview of the victim's mother, Vickie Epperson Everson, by Detective Perry in which Vickie stated, Petitioner argued on appeal that Vickie's statement to Detective Perry established that she and Rebecca lied to police about Petitioner's sexual assault simply as a way of getting him removed from their home. Petitioner further argued that he only became aware of this evidence on March 5, 2009. On November 27, 2009, the Utah Court of Appeals summarily dismissed Petitioner's appeal because it was untimely. Id.
State Post-Conviction Proceedings. On March 3, 2010, Petitioner petitioned for determination of factual innocence under Utah Code Ann. § 78B-9-402 (2014). He asserted that (1) his cellmate, Nye, fabricated his story that Petitioner confessed to sexually assaulting Rebecca, and Nye falsely testified at the preliminary hearing; (2) the State's DNA expert was not credible because his testing methodology was suspect; (3) Vickie confessed to Detective Perry that she and Rebecca had lied to the detectives so that Petitioner would be removed from their home; and (4) detectives violated his equal-protection rights when they arrested and charged him, though the police knew the evidence against him was false.1 The State moved to dismiss the petition. On January 6, 2011, after oral argument, the post-conviction court granted theState's motion. On January 27, 2011, the court entered findings of fact and conclusions of law dismissing the petition. Petitioner did not appeal the post-conviction court's order of dismissal.
Current Federal Habeas Petition. On June 21, 2012, Petitioner filed this habeas-corpus petition. (See Docket Entry # 4.) Respondent answered, asking that the petition be dismissed. (See Docket Entry # 16.) Petitioner replied. (See Docket Entry # 31.)
Petitioner raises the following grounds for relief in his habeas petition:
Newly discovered evidence. Petitioner asserts that, after a diligent review of the case files, he found that Vickie, the victim's mother, told investigators in 1999 that Petitioner did not commit the crime here, and has recanted her statements to police implicating Petitioner. See Pet. for Writ of Habeas Corpus (Habeas Pet.) at 6.
False evidence. Petitioner argues that his Fifth Amendment rights were violated when the State presented false evidence preventing a fair hearing or trial. While Petitioner never specifically says what the false evidence is, presumably he means Vickie's recanted statements and the preliminary hearing testimony of Rebecca and Nye. Id. at 7-8.
Restraint against liberty against Utah law. Petitioner asserts his continued incarceration in light of Vickie's recanted statements, which show that no crime was committed, violates Utah law. Petitioner does not, however, specify what Utah laws are being violated. Id. at 9.
Ineffective assistance. Petitioner argues that his defense attorney was ineffective by failing to discover that Vickie confessed that she lied about Petitioner sexually assaulting Rebecca, and he allowed an innocent person--Petitioner--to plead guilty. Id. at 11.
As explained below, the Court concludes that this petition must be dismissed because it is time-barred under the one-year period of limitation, 28 U.S.C.S. § 2244(d)(1) (2014), and all his claims are, in any event, procedurally defaulted because they were never presented, and cannot now be presented, to the Utah Supreme Court.
Petitioner's habeas claims are all time-barred because they were raised after the one-year federal period of limitation expired. The federal statute governing habeas corpus provides that a one-year period of limitation applies "to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." Id. This period 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" or "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Id. § 2244(d)(1)(A) & (D).
The one-year limitation period is tolled by time spent seeking state post-conviction relief. Id. at § 2244(d)(2) (). However, tolling does not revive the limitations period—that is, restart the clock at zero; it can only serve to pause a clock that has not already run. See Jackson v. Dormire, 180 F.3d 919, 920 (8th Cir. 1999). Thus, the time between when Petitioner's conviction became final and when he filed his state post-conviction petition must be counted in the limitation period. State collateral review only tolls the one-year period; it does not delay its start. See Bingham v. Anderson, 21 F. Supp. 2d 639, 640 (D. Miss. 1998).2
Here, Petitioner's sentence was entered on December 21, 1999. See Everson, 2009 UT App 352. Under state appellate procedure, a "notice of appeal . . . shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." Utah R. App. P. 4(a). Petitioner did not file an appeal within the thirty-day period. Thus, the time for seeking appellate review expired on January 20, 2000. Because Petitioner did not seek collateral review of his conviction and sentence within the one-year period after this date, Petitioner had until January 20, 2001 to raise any federal habeas claims not based on newly discovered evidence. His federal habeas petition was not filed until June 21, 2012, eleven-and-a-half years too late. Therefore, Petitioner's claims that are not based on alleged newly discovered evidence of recanted witness statements are time-barred.
Petitioner alleges, however, that it was not until March 5, 2009, that he became aware that Vickie allegedly lied during her interview with Detective Perry. And he was aware no later than August 21, 2009, the date on which he filed his untimely notice of appeal, that she had recanted her statements inculpating Petitioner. Assuming, for the sake of argument, that even with the exercise of reasonable diligence Petitioner could not have discovered this "new"evidence before August 21, 2009, his claims are still time-barred. Because the limitation period for his habeas petition began to run from the date upon which the new evidence was discovered, see 28 U.S.C. § 2244(d)(1)(D) (2014), Petitioner had one year from August 21, 2009 to raise his federal habeas claims based on newly discovered evidence.
However, as explained, 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." Id. § 2244(d)(2). In Petitioner's case, he filed a post-conviction petition for determination of factual innocence in state court on March 3, 2010. Therefore, 194 days of the 365-day limitation period lapsed before Petitioner's state post-conviction petition started tolling the limitation period, leaving Petitioner with 171 days to file a federal habeas petition once the limitation period began to run again. The post-conviction court dismissed Petitioner's factual-innocence petition on January 27, 2011. Petitioner did not seek appellate review of the dismissal order and, therefore, his post-conviction case ceased pending on February 26, 2011. The following day, the federal limitation period again began to run and Petitioner had 171 days, or until August 16, 2011, to timely file his federal habeas petition. His petition was not filed until June 21, 2012, over ten months too late. Because Petitioner's claims were not timely raised, they are now time-barred.
Because the claims raised in Petitioner's habeas petition are time-barred, they must be dismissed unless Petitioner shows that he is entitled to proceed with an untimely petition. Theone-year limitation period has generally been considered a...
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