Poitra v. North Dakota

• Decision Date: 07 January 2015
• Docket Number: Case No. 1:13–cv–096.
• Citation: 79 F.Supp.3d 1021
• Parties: Joshua John POITRA, Petitioner, v. State of NORTH DAKOTA, Respondent.
• Court: U.S. District Court — District of North Dakota

79 F.Supp.3d 1021

Joshua John POITRA, Petitioner

v.State of NORTH DAKOTA, Respondent.

Case No. 1:13–cv–096.

United States District Court, D. North Dakota, Southwestern Division.

Signed Jan. 7, 2015.

Joshua John Poitra, Bismarck, ND, pro se.

Ken R. Sorenson, Attorney General's Office, Bismarck, ND, for Respondent.

ORDER GRANTING MOTION TO DISMISS § 2254 PETITION

CHARLES S. MILLER, JR., United States Magistrate Judge.

Petitioner Joshua John Poitra is an inmate at the North Dakota State Penitentiary (“NDSP”) in Bismarck, North Dakota. He has filed a “Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody.” The State of North Dakota (“State”) has filed a “Motion to Dismiss Section 2254 Petition.” The parties have consented to the exercise of jurisdiction by the undersigned. For the reasons set forth below, the State's motion to dismiss is granted, and Poitra's habeas petition is dismissed with prejudice.

I. BACKGROUND

In July 2009, Poitra was convicted by a jury in state court in Cass County, North Dakota of one count of gross sexual imposition and one count of aggravated assault. (Doc. No. 8, Exs. 12; 16, ¶ 11). On October 26, 2009, he was sentenced to 25 years imprisonment with 5 years suspended on the gross sexual imposition conviction and 5 years imprisonment on the aggravated assault conviction, with the sentences to run concurrent. (Doc. No. 8, Ex. 12). He appealed to the North Dakota Supreme Court. (Doc. No. 8, Ex. 13). On July 13, 2010, the North Dakota Supreme Court issued a decision affirming the criminal judgment. (Doc. No. 8, Ex. 16); State v. Poitra, 2010 ND 137, 785 N.W.2d 225. Poitra did not file a petition for a writ of certiorari in the United States Supreme Court.

On August 11, 2011, Poitra filed a pro se application for postconviction relief in the state district court. (Doc. No. 8, Exs. 17–18). On September 6, 2011, attorney Daniel Gast was appointed to represent Poitra in that proceeding. (Doc. No. 8, Exs. 17; 22, p. 5). On May 25, 2012, the district court issued an order denying the application. (Doc. No. 8, Ex. 22). On June 29, 2012, Poitra filed a notice of appeal to the North Dakota Supreme Court. (Doc. No. 8, Ex. 17). On August 6, 2012, Gast was appointed to represent Poitra on his state postconviction appeal. (Id. ). On January 23, 2013, the North Dakota Supreme Court issued a decision summarily affirming the denial of Poitra's application for postconviction relief. (Doc. No. 8, Ex. 28); Poitra v. State, 2013 ND 5, 828 N.W.2d 546 (per curiam). On February 25, 2013, the Court issued its mandate. (Doc. No. 8, Ex. 25).

On August 12, 2013, Poitra placed his federal habeas petition in the prison mailing system. (Doc. No. 2, p. 14). The State has filed a motion to dismiss the petition on the grounds that Poitra's claims are time-barred and that, in any event, they have either been procedurally defaulted or are without merit.

II. WHETHER POITRA'S PETITION IS TIME–BARRED

A. Poitra failed to file his petition with the one-year limitations period

1. AEDPA's statute of limitations

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the one-year statute of limitations at 28 U.S.C. § 2244(d)(1) applies to a state prisoner's application for federal habeas corpus relief. Johnson v. Hobbs, 678 F.3d 607, 610 (8th Cir.2012). In this case, pursuant to § 2244(d)(1)(A), the one-year period began to run on “the date on which the [state court] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[.]” See, e.g., Johnson, 678 F.3d at 610. “Review of a state criminal conviction by the United States Supreme Court is considered direct review of the conviction.” King v. Hobbs, 666 F.3d 1132, 1135 (8th Cir.2012) (quoting Smith v. Bowersox, 159 F.3d 345, 347 (8th Cir.1998) ). When the United States Supreme Court has jurisdiction to review the state court judgment and the petitioner does not seek such review, the state court judgment becomes final when the petitioner's time for requesting a writ of certiorari expires. Gonzalez v. Thaler, ––– U.S. ––––, 132 S.Ct. 641, 653–54, 181 L.Ed.2d 619 (2012).

Section 2244(d)(2) provides for the tolling of the one-year statutory period for “[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[.]” See, e.g., Johnson, 678 F.3d at 610. The time between the conclusion of direct review of the state court judgment and the filing of an application for state post-conviction relief counts against the one-year period. Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir.2001). “A state postconviction action ‘remains pending’ for the purpose of federal tolling ‘until the application has achieved final resolution through the State's postconviction procedures.’ ” Steen v. Schuetzle, 326 Fed.Appx. 972, 973 (8th Cir.2009) (quoting Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) ). A postconviction proceeding appealed to the North Dakota Supreme Court remains pending until the Court issues its mandate. Steen, 326 Fed.Appx. at 974 (citing Finch v. Backes, 491 N.W.2d 705, 707 (N.D.1992) ; N.D.C.C. § 28–05–10 ).

A pro se prisoner's habeas petition is deemed filed on the date it is delivered to prison officials for mailing to the clerk of court. Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th Cir.1999), abrogated on other grounds by Riddle v. Kemna, 523 F.3d 850 (8th Cir.2008). Fed.R.Civ.P. 6(a) generally governs the calculation of AEDPA time limits. Wright v. Norris, 299 F.3d 926, 927 n. 2 (8th Cir.2002).

2. The one-year limitations period expired before Poitra filed his petition

Poitra's conviction was affirmed by the North Dakota court of last resort, and he did not file a petition for a writ of certiorari with the United States Supreme Court. Accordingly, his one-year period for filing a § 2254 petition began to run when his time for seeking review by the United States Supreme Court expired. Supreme Court Rule 13.1 provides that a petition for a writ of certiorari is timely when it is filed within 90 days of entry of the judgment by the state court of last resort. That time period does not include the day of the filing of the judgment. See Supreme Court Rule 30. It does include the last day of the period unless it is a Saturday, Sunday, or federal legal holiday, in which case the time period is extended to the next business day. Id.

The North Dakota Supreme Court's judgment affirming Poitra's criminal conviction was entered no later than July 15, 2010. From that date, Poitra's time for filing for certiorari expired on October 13, 2010, and his one-year period for filing a § 2254 petition began to run on or about that date.¹ Poitra's time for filing a § 2254 petition then ran for 303 days until it was tolled on August 11, 2011, by the filing in state district court of his application for postconviction relief. (Doc. No. 8, Exs. 17–18). The statutory period remained tolled until the North Dakota Supreme Court issued its mandate on February 25, 2013. (Doc. No. 8, Ex. 25). The sixty-two days remaining for Poitra to file his § 2254 petition would have expired on or about April 28, 2013, more than three months before his habeas petition was placed in the prison mailing system on August 12, 2013.

B. Equitable tolling

1. Law governing equitable tolling

The one-year AEDPA limitations period is subject to equitable tolling in a very narrow range of cases. Holland v. Florida, 560 U.S. 631, 645, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (“Holland ”); Deroo v. United States, 709 F.3d 1242, 1246 (8th Cir.2013). A petitioner claiming equitable tolling must show “ ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland, 560 U.S. at 649, 130 S.Ct. 2549 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ).

“The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653, 130 S.Ct. 2549 (internal quotations and citations omitted). What may qualify as an “extraordinary circumstance” is discussed in more detail later. In short, however, when what is claimed is negligence or even gross negligence of counsel, it probably must amount to counsel having effectively abandoned the client to be an “extraordinary circumstance.”

2. Factual information proffered by Poitra

To justify his late submission, Poitra asserts in his petition:

Although North Dakota Supreme Court affirmed my conviction January 23, 2013, I was not made aware of the honorable court's ruling until [July 1, 2013] when I'd [R]epeatedly written this Court Clerk's Office requesting the status of my appeal.

North Dakota law stipulates that the courts do [n]ot send copies of correspondence or documents to a defendant, but that said must be sent directly to an attorney of record. The problem being that the law firm handling my appeal no longer employed my attorney of record. Thus my repeated attempts at receiving notification of the status of my appeal, were [n]ot answered until July 1, 2013, when the Clerk's Office of the North Dakota Supreme Court notified me themselves.

(Doc. No. 2, p. 13) (brackets and errors in original; citations to Exhibits omitted). Poitra also submits a number of letters to support his argument.

One is a letter written by Poitra to the Clerk of the North Dakota Supreme Court dated August 10, 2012, which reads:

Appellant Joshua Poitra, pro-se respectfully requests the Honorable Court for an extension of time to file and do his appeal brief. As I am still waiting for a response back from the District Court concerning the application to appoint an attorney to me for my appeal to you the Supreme Court. I don't know what to do and sure could use the help from a public defender with my issues regarding the appeal brief and

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