United States District Court, E.D. Missouri, Eastern Division
NUNC PRO TUNC OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
matter is before the Court upon review of movant's
response to the order to show cause. Having carefully reviewed
movant's response, the Court concludes that his arguments
are without merit and that the instant action is time-barred
under 28 U.S.C. § 2255.
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
imposed a one-year statute of limitations on motions by
prisoners seeking to modify, vacate, or correct their federal
sentences. Johnson v. United States, 544 U.S. 295,
299 (2005). The one-year time limit generally begins to run
on the date the prisoner's judgment of conviction becomes
final. See 28 U.S.C. § 2255.
concedes that his conviction became final on April 27, 2016,
and his time for filing his § 2255 motion was on or
before April 27, 2017. He filed his § 2255 motion on May
1, 2017, which is out of time. Nevertheless, movant contends
that the Court should apply the equitable tolling doctrine to
excuse his untimely filing of his § 2255 motion. The
Court finds equitable tolling is not warranted in this case.
Eighth Circuit has established two tests for determining when
equitable tolling of the limitation period for filing a
motion to vacate is appropriate: (1) whether extraordinary
circumstances beyond the movant's control kept him from
filing a timely motion; or (2) whether the movant relied on
government conduct that lulled him into inaction. See
United States v. Hernandez, 436 F.3d 851, 858
(8th Cir. 2006) (citations omitted). Additionally,
equitable tolling should only apply where the movant has
demonstrated diligence in pursuing the matter.
relies on the first of the two tests, “extraordinary
circumstances, ” to assert equitable tolling. Movant
states that a medical condition he has had since 2011, and
the medications associated with the condition, rendered him
“almost incapacitated.” Also, movant states that
he does not read or write or understand the English language,
and he did not have access to a law library until May 10,
2016. He states the law library does not have legal materials
in Spanish, and he lacked assistance because most of his
fellow inmates do not understand legal materials.
had more than eleven months at the Great Plains Correctional
Facility before the expiration of his one-year limitations
period, with access to legal materials to help prepare a
§ 2255 motion. Courts in this circuit have repeatedly
held that lack of access to Spanish legal materials does not
constitute extraordinary circumstances, especially when
movant fails to demonstrate that he diligently sought legal
materials in Spanish or that he sought the services of an
interpreter to assist him. See United States v.
Gaxiola, 2006 WL 3209117, *1 (D. Minn. Nov. 7, 2006)
(finding no equitable tolling where petitioner failed to
demonstrate diligence in seeking legal materials in Spanish);
see also United States v. Soberanis-Sagrero, 2007 WL
2509724, *3 (D. Minn. Aug. 30, 2007) (citing cases)
(“Many federal prisoners are in the same position as
defendant, yet are able to comply with the one-year filing
requirement for a § 2255 motion”). In
Soberanis-Sagrero, the district court denied
equitable tolling to a prisoner who alleged he could not
understand English, that his prison law library did not
contain legal materials written in Spanish, and that he had
no access to Spanish-speaking law library clerks. The court
noted that many federal prisoners in the same position are
able to comply with the one-year filing requirement.
Id. at *2-3. See also Mendoza v. Minnesota,
100 F. App'x 587, 588 (8th Cir. 2004) (per
curiam) (affirming district court's dismissal of
petitioner's § 2254 motion where petitioner had
argued he was not fluent in English).
does plaintiff's medical condition constitute
extraordinary circumstances beyond plaintiff's control
that made filing a timely motion impossible. Movant states
that in 2011 he had a heart attack and doctors inserted a
stent and “did some surgery to open [his] artery for
better blood flow.” He states that after the surgery he
was heavily medicated, which caused him to suffer from
dizziness, blurred vision, stomach problems, and headaches.
He states he was “almost incapacitated by it, and
lacked ability to think straight and rational.” He
attaches medical records to his response, but these medical
records show little more than the prescription medications
plaintiff took at various times.
Eighth Circuit has recognized that a “mental impairment
can be an extraordinary circumstance” justifying
equitable tolling of the AEDPA's statute of limitations.
See Nichols v. Dormire, 11 F. App'x 633, 634
(8th Cir. 2001) (per curiam). Here, however,
movant does not allege a mental impairment, but alleges
physical symptoms resulting from his medications. By his own
admission, these symptoms were not incapacitating. “For
[movant's] medical condition to justify the delay, he
must provide sufficient facts demonstrating that
hospitalization or a medical condition incapacitated him and
prevented a timely filing.” Pawliszko v.
Smith, 2012 WL 4815597, *2 (D. Minn. Oct. 10, 2012).
Movant has not provided any evidence that his medical
condition incapacitated him or prevented his timely filing.
Court finds that movant has not demonstrated extraordinary
circumstances beyond his control, making it impossible to
file his § 2255 motion on time. Therefore, the doctrine
of equitable tolling does not apply, and movant's motion
must be dismissed as untimely.
IT IS HEREBY ORDERED that movant's
motion to vacate, set aside, or correct illegal sentence
pursuant to 28 U.S.C. § 2255 is DENIED.
See Rule 4 of the Rules Governing
§ 2255 Proceedings.
IS FURTHER ORDERED that the Court will not issue a
Certificate of Appealability. See 28 U.S.C.