United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE.
matter is before the Court on petitioner's response to
the order to show cause.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.
12, 2013, petitioner pled guilty as a chronic offender to one
count of driving while intoxicated. Missouri v.
Sandknop, Case No. 12SL-CR12196 (St. Louis County). On
the same day, the court sentenced him to 10 years'
imprisonment. The sentence required him to complete a
long-term substance abuse treatment program. He did not file
a direct appeal.
December 16, 2014, after successfully completing a long-term
substance abuse treatment program, the sentencing court
ordered that petitioner be released from confinement and
placed him on a five-year period of probation. Petitioner
violated the terms of probation, however, and on December 3,
2015, the court revoked his probation and ordered him to
serve the remainder of his ten-year sentence. He did not
filed his federal writ of habeas corpus, pursuant to 28
U.S.C. § 2254 by placing the current application in the
mail on July 18, 2017.
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. The
period is tolled during the pendency of any properly filed
motion for postconviction relief. Id. If no direct
appeal is taken, a Missouri conviction becomes final ten days
after the judgment is entered. Mo. R. Civ. P. §
81.04(a). As a result, petitioner's judgment became final
on about July 22, 2013, and the one year period ended a year
later. Petitioner did not take any action on the judgment
until September 9, 2014, when he filed a petition for writ of
mandamus. As a result, the one-year
limitations period expired in July 2014 and this case is
response to the Order to Show Cause, petitioner asserts that
he should be excused from the one-year statute of limitations
because he was abandoned by counsel. He states that he
retained counsel to pursue his habeas corpus rights under
§ 2254, but counsel intentionally and deliberately
abandoned all petitioner's claims. In support of his
claim of abandonment, petitioner attaches to his response a
letter dated January 6, 2017 from attorney Brandon Fisher of
the Fisher Law Firm. Mr. Fisher states that he
"won't be able to take [petitioner's] case any
further at this time." Mr. Fisher suggests petitioner
retain counsel closer to St. Louis County, Missouri.
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 warranted").
assertions about abandonment of counsel are insufficient to
allow equitable tolling. Petitioner's one-year
limitations period expired in July 2014. It is unclear when
he requested Mr. Fischer to represent him in habeas
proceedings, but Mr. Fischer's letter stating he would
not be able to take petitioner's case is dated three and
a half years after petitioner was sentenced, and two and a
half years after the statute of limitations ran on
petitioner's § 2254 motion. There is no indication
that plaintiff did anything in this period that would warrant
assuming petitioner had requested Mr. Fisher's legal
representation in July 2013, the Eighth Circuit Court of
Appeals has repeatedly held that faulty legal assistance
alone does not warrant equitable tolling. See Beery v.
Ault, 312 F.3d 948, 951 (8th Cir. 2002)
("[ineffective assistance of counsel generally does not
warrant equitable tolling"). Certainly, the Court has no
evidence that Mr. Fisher did anything to make it impossible
for petitioner to file a postconviction relief motion on
time. Moreover, the Court has no evidence that petitioner was
pursuing his rights diligently during the three and a half
years after his sentence became final and before he received
Mr. Fisher's letter. Sellers v. Burt, 168
Fed.Appx. 132, 133 (8th Cir.) (unpublished opinion)
(rejecting petitioner's argument that the statute of
limitations should be tolled "because his state
post-conviction attorney failed to communicate with him and
did not send his case file"); Greene v.
Washington, 14 Fed.Appx. 736, 737 (8th Cir.2001)
(rejecting equitable tolling argument based on alleged
mistake by post-conviction attorney) (unpublished opinion).
petitioner has failed to give an equitable reason why his
untimeliness should be excused, the Court must dismiss the
petition under 28 U.S.C. § 2244.
IT IS HEREBY ORDERED that petitioner's
application for writ of habeas corpus brought pursuant to 28
U.S.C. § 2254 is DENIED AND DISMISSED
as time-barred. ...