United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on petitioner’s response to
the Order to Show Cause why the petition should not be
dismissed as time-barred. Having carefully reviewed
petitioner’s response, the Court concludes that his
arguments are without merit, and that the instant action is
time-barred under 28 U.S.C. § 2244.
trial, petitioner, John Tribbitt, was found guilty of two
counts of possession with intent to distribute and one count
of trafficking in the second degree. See State v.
Tribbitt, Case No. 1122-CR00442-01(22nd
Judicial Circuit, St. Louis City). On November 28, 2012,
petitioner was sentenced to three, ten-year terms’ of
imprisonment in the Missouri Department of Corrections, to
run concurrently. Petitioner did not file a direct appeal of
his conviction and sentence until August 25, 2014. See
Missouri v. Tribbitt, Case No. ED101937 (Mo.Ct.App.
September 9, 2014, the Missouri Court of Appeals directed
petitioner to show cause why his appeal shouldn’t be
dismissed as untimely, pointing out that his notice of appeal
was filed more than eighteen months late. On October 24,
2014, the Missouri Court of Appeals dismissed
petitioner’s appeal as untimely. Although petitioner
later moved to file a late notice of appeal, his motion to do
so was denied on November 24, 2014. Id. Petitioner
failed to file any post-conviction remedies in state court.
petitioner did file a state habeas corpus petition, pursuant
to Mo.S.Ct.R.91, on August 14, 2015, in Cole County Circuit
Court, which was denied. See Tribbitt v. Lawrence,
Case No. 15AC-CC00409 (19th Judicial Circuit, Cole
to 28 U.S.C. § 2244(d), a petitioner has one year from
the date his judgment of conviction becomes final within
which to file a petition for writ of habeas corpus. Where, as
here, a Missouri petitioner does not file a timely direct
appeal, his judgment becomes final upon expiration of the
time within which he may file a notice of appeal, or within
ten (10) days of the date of his sentence. Mo.S.Ct.R.81.04.
Accordingly, petitioner’s judgment of conviction became
final on approximately December 8, 2012.
more than a year later that petitioner first filed his notice
of his direct appeal, or approximately 18 months later, as
the Court of Appeals noted. Thus, by the time petitioner
attempted to exhaust his state remedies, he was already too
late to file his federal habeas corpus action in this
response to the Order to Show Cause, petitioner asserts that
he should be excused from the one-year statute of limitations
a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way.'' Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable tolling
is ''an exceedingly narrow window of
relief.'' Jihad v. Hvass, 267 F.3d 803, 805
(8th Cir. 2001). ''Pro se status, lack of legal
knowledge or legal resources, confusion about or
miscalculations of the limitations period, or the failure to
recognize the legal ramifications of actions taken in prior
post-conviction proceedings are inadequate to warrant
equitable tolling.'' Shoemate v. Norris, 390
F.3d 595, 598 (8th Cir. 2004) (quotation marks omitted);
Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir.
2000) (holding that ''even in the case of an
unrepresented prisoner alleging a lack of legal knowledge or
legal resources, equitable tolling has not been
asserts that his filing in this Court is more than three
years too late because he was negligent in filing his notice
of appeal from his conviction and sentence. Petitioner
asserts that he believed his trial counsel was going to file
the notice of appeal after the conclusion of his trial, and
“once he realized the filing period had passed, [he]
tried to file immediately. . . but there was no transcript in
order to complete the filing.”
has failed to show that he was diligently pursuing his rights
and some extraordinary circumstance prevented him from
presenting his claims to this Court in a timely fashion.
Holland v. Florida, 560 U.S. 631, 649 (2010). First,
it took petitioner at least 18 months to file a direct appeal
of his conviction and sentence. Moreover, petitioner failed
to file a motion for post-conviction relief from his
sentence, pursing his alleged abandonment of trial counsel
claim. Petitioner’s failure to timely pursue his own
direct appeal, as well as his failure to pursue any
post-conviction arguments related to his trial
counsel’s abandonment, belies his assertions that he
diligently pursued his rights.
petitioner has failed to give an equitable reason why his
untimeliness should be excused, the Court must dismiss ...