Summers v. Utah
| Decision Date | 18 September 2017 |
| Docket Number | Case No. 2:15-CV-604-JNP |
| Parties | DAVID T. SUMMERS, Petitioner, v. STATE OF UTAH, Respondent. |
| Court | U.S. District Court — District of Utah |
Based on untimely filing of the petition, the Court grants Respondent's motion to dismiss.
Petitioner pleaded guilty to attempted aggravated sexual abuse of a child. On August 28, 2008, he was sentenced to a three-years-to-life term; no appeal followed. On February 4, 2009, Petitioner filed a state petition for post-conviction relief, which was dismissed on September 30, 2009; no appeal followed.
Petitioner filed his first federal habeas petition on August 7, 2009. Summers v. Utah State Prison, No. 2:09-CV-703 DAK (D. Utah Oct. 28, 2009) (dismissal order). It was denied for failure to exhaust. Id. The merits were not addressed. Id.
On August 9, 2012, almost four years after he was sentenced, Petitioner filed in the underlying criminal case a notice of appeal, which was summarily dismissed as untimely. State v. Summers, No. 20120669-CA (Utah Ct. App. Oct. 2, 2012) (Order of Summary Dismissal).
Petitioner submitted his second federal habeas petition on June 11, 2013. Summers v. Utah, No. 2:13-CV-431 RJS (D. Utah Oct. 29, 2013) (dismissal order). It was dismissed for failure to pay the filing fee. Id. The merits were not addressed.1 Id. Petitioner's application for a certificate of appealability was denied. Summers v. State, 560 Fed. App'x 778 (10th Cir. 2014).
On August 25, 2015, Petitioner filed his current federal habeas corpus petition.
Federal statute puts a one-year limitation period on filing of a habeas-corpus petition. 28 U.S.C.S. § 2244(d)(1) (2017). The period begins to run on "the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. A state judgment becomes final when the United States Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v. United States, 537 U.S. 522, 527 (2003); Locke v. Saffle, 237 F.3d 1269, 1271-72 (10th Cir. 2001).
"The one-year period of limitation for filing a federal habeas petition is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period." May v. Workman, 339 F.3d 1236, 1237 (10th Cir. 2003) (citing 28 U.S.C. § 2244(d)(2)). A "state postconviction application 'remains pending' 'until the application has achieved final resolution through the State's postconviction procedures.'" Lawrence v. Florida, 549 U.S. 327, 332 (2007) (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)); see also Fisher v. Raemisch, 762 F.3d 1030, 1032 (10th Cir. 2014). Once the post-conviction case ends in state court, the one-year limitation period begins to run again.2
Tolling, however, does not revive the limitations period—i.e., it does not restart the clock at zero. It serves only to suspend a clock that has not already run. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001); see also Laws v. LaMarque, 351 F.3d 919, 922 (9th Cir. 2003). Thus, any time between when a petitioner's direct appeal becomes final and when he files his petition for state post-conviction relief is counted in the limitations period. Moreover, any time between when the state post-conviction action concludes and before a petitioner's habeas petition is filed also counts toward the limitations period because state-collateral review only pauses the one-year period; it does not delay its start. See McMonagle v. Meyer, 766 F.3d 1151, 1159 (9th Cir. 2014) (J. Rawlinson, dissenting) ("Although filing of collateral proceedings may toll the running of the limitations period, it does not affect commencement of the running of the limitations period.").
In other words, time elapsing after a petitioner's conviction becomes final on direct review, but before a state post-conviction petition is filed, and time after final disposition of the petitioner's post-conviction proceedings, but before the filing of the federal habeas petition, aggregate to count against the one-year-limitation period. See Sutton v. Cain, 722 F.3d 312, 316 n.6 (5th Cir. 2013) ().
Petitioner was convicted on August 28, 2008. He had thirty days to appeal but did not. 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, 62 P.3d 444.
Thus, Petitioner's judgment of conviction became final—and the limitation period began to run—on September 29, 2008. Cf. Clay, 537 U.S. at 527 ().
After 160 days of the limitation period had expired, on February 4, 2009, Petitioner properly filed a state post-conviction petition, tolling the limitation period's running. See 28 U.S.C. § 2244(d)(2). The petition was dismissed on September 30, 2009. No appeal followed. After the thirty-day appeal period expired, on October 30, 2009, the period of limitation began running again. 205 days later, on May 24, 2010, the period of limitation lapsed.
On August 25, 2015, Petitioner filed this petition—over five years too late.
Petitioner has no ground for statutory tolling, but an expansive reading of all his filings indicates potential arguments for equitable tolling. He suggests that he is illiterate and not trained in the law; was delayed by the allegedly state-created impediment of contract-attorney lack of help and conflict of interest; and is actually innocent.
The Court addresses whether the circumstances underlying these arguments trigger equitable tolling to save Petitioner from the period of limitation's operation. "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. District Court, 128 F.3d 1283, 1288 (9th Cir. 1997) (citation omitted). Those situations include times "'when a prisoner is actually innocent'" or "'when an 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, 232 F.3d, 799, 808 (10th Cir. 2000)). 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). Against the backdrop of these general principles, the Court considers Petitioner's specific arguments.
Petitioner asserts that his lateness should be overlooked because he lacked literacy, legal resources, legal knowledge, and had only limited help from prison contract attorneys. Petitioner has "failed to elaborate on how these 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 one, low intelligence and learning disabilities generally do not toll the limitation period. See id. at *5 (). Also, 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) (). 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, Thomas v. Gibson, 218 F.3d 1213, 1222 (10th Cir. 2000) (quotingColeman v. Thompson, 501 U.S. 722, 752 (1991) (citations omitted)); see also 28 U.S.C. § 2254(i) (). 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) ().
Petitioner has not met his burden of showing that—during the running of the federal period of limitation and beyond—he faced extraordinary circumstances that stopped him from timely filing or...
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