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.
1, 2012, petitioner pled guilty to felony theft/stealing a
controlled substance in violation of Section 570.030 of the
Missouri Revised Statutes. See State v. Walley, No.
12PR-CR00061-01 (32nd Judicial Circuit, Perry
County Court). The Circuit Court for Perry County sentenced
petitioner to seven (7) years' imprisonment on that same
date. Petitioner did not file a direct appeal.
October 16, 2017, petitioner filed a post-conviction motion
to vacate his sentence pursuant to Missouri Supreme Court
Rule 24.035. See Walley v. State, No. 17PR-CC00053
(32ndJudicial Circuit, Perry County Court). The
motion was denied as untimely on February 6, 2018.
placed his application for writ of habeas corpus in the
prison mailing system at Eastern Reception, Diagnostic and
Correctional Center ("ERDCC") on March 20, 2018.
And it was received by this Court on March 23, 2018.
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. Because
petitioner failed to file a timely appeal or post-conviction
motion, his period of limitations under §2244 expired
one year and ten (10) days after his judgment was entered on
June 1, 2012. See Mo. R. Civ. P. § 81.04(a).
Petitioner's application for habeas corpus was filed more
than four and a half years after the statute of limitations
expired in this matter, on June 11, 2013.
response to the Order to Show Cause, petitioner asserts that
he lacked the legal knowledge and legal resources to properly
exhaust his state court remedies in a timely fashion. It
appears that petitioner is seeking the benefit of equitable
tolling in this matter.
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").
petitioner's vague assertions regarding his lack of legal
knowledge and his lack of legal resources is not sufficient
to allow for equitable tolling of the statute of limitations.
Additionally, petitioner's assertion in his petition that
he had faulty legal assistance, does not, by itself, 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");
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
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. Rule 4 of the Rules Governing Habeas Corpus
IS FURTHER ORDERED that the Court will not issue a
certificate of ...