United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
matter is before the Court upon petitioner's response to
the June 10, 2019 Order for Petitioner to Show Cause,
directing him to show cause why his petition should not be
dismissed as untimely. Having reviewed and considered
petitioner's response, the Court concludes that the
petition is barred by the statute of limitations, and neither
the doctrine of equitable tolling nor 28 U.S.C. §
2244(d)(1)(D) apply. The Court will therefore dismiss the
petition without further proceedings.
forth in detail in the Court's June 10, 2019 order,
petitioner filed the instant petition after the expiration of
the one-year limitations period set forth in the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2244(d)(1)(A).
Briefly, however, the relevant dates are as follows.
Petitioner's state court judgment became final for
purposes of the AEDPA on November 24, 2013, and he had until
not later than November 24, 2014 to file a petition for writ
of habeas corpus in federal court pursuant to 28 U.S.C.
§ 2254. He did not file a motion for post-conviction
relief, but on July 28, 2017 and March 5, 2018, he filed
petitions for habeas corpus relief in state court. Both were
denied. Petitioner filed the instant petition in this Court
on June 3, 2019, more than four and one-half years after the
statute of limitations expired. In the petition, petitioner
claimed the state trial court lacked jurisdiction to try him
because the bank he robbed was federally insured.
June 10, 2019 order, the Court directed petitioner to show
cause why his petition should not be dismissed as untimely.
In response, petitioner can be understood to argue that his
two state habeas petitions should serve to toll the
limitations period because they were not rejected as untimely
by the state court, and also that they should be treated as
motions for post-conviction relief. Petitioner can also be
understood to argue entitlement to equitable tolling because
his trial attorney erroneously told him the bank he robbed
was a “State bank, ” but a cellmate later told
him the bank was federally insured and took him to the law
library and showed him a case. (Docket No. 6 at 2).
Petitioner then writes: “Thus, petitioner did not
discover the factual predicate of his claim until then, and
could not have known beforehand by exercise of reasonable
diligence.” Id. Petitioner does not specify
when he had that interaction with his cellmate.
July 28, 2017 and March 5, 2018 state court habeas petitions
cannot serve to toll the AEDPA's one-year statute of
limitations. Under 28 U.S.C. § 2244(d)(2), the one-year
limitation period for filing a federal habeas petition is
tolled while “a properly filed application for State
post-conviction or other collateral review ... is
pending.” Williams v. Bruton, 299 F.3d 981,
982 (8th Cir. 2002). Properly-filed state habeas applications
qualify as “other collateral review” under 28
U.S.C. Section 2244(d)(2). Polson v. Bowersox, 595
F.3d 873 (8th Cir. 2010). However, in order for an
application to toll the one-year limitations period, it must
be filed prior to its expiration. Curtiss v. Mount
Pleasant Correctional Facility, 338 F.3d 851, 853 (8th
Cir. 2003). Here, both of petitioner's state habeas
petitions were filed after the expiration of the statute of
limitations. They therefore cannot serve to toll it. See
petitioner demonstrated entitlement to equitable tolling.
Equitable tolling is proper when the petitioner has been
diligently pursuing his rights, but “extraordinary
circumstances” beyond his control made it impossible to
file a timely petition. Cross-Bey v. Gammon, 322
F.3d 1012, 1015 (8th Cir. 2003). “Generally, such
circumstances must be external to the petitioner . .
.”. Id. Equitable tolling is also proper if
State conduct lured the petitioner into inaction.
Id. “Any invocation of equity to relieve the
strict application of a statute of limitations must be
guarded and infrequent, lest circumstances of individualized
hardship supplant the rules of clearly drafted
case at bar, even assuming petitioner was diligently pursuing
his rights, he has identified no extraordinary circumstance
beyond his control that made it impossible for him to file a
timely petition. Petitioner does not explain, nor is it
apparent, how his trial counsel affected his ability to file
a timely petition, and the mere fact counsel may have been
negligent or even ineffective is not an extraordinary
circumstance warranting equitable tolling. See Holland v.
Florida, 560 U.S. 631, 655 (2010), Beery v.
Ault, 312 F.3d 948, 951 (8th Cir. 2002). Additionally,
petitioner alleges nothing tending to show that his failure
to timely file the instant petition is attributable to the
petitioner can be understood to contend his petition is
timely according to 28 U.S.C. § 2244(d)(1)(D), which
provides that the one-year period can begin “on the
date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence.” Petitioner contends he did not learn of
the factual predicate of his claim until his cellmate told
him the bank was federally insured. However, he does not
specify when this interaction occurred, and it is therefore
unclear when petitioner believes the one-year period should
have begun. Additionally, the fact the bank was federally
insured and information about state and federal jurisdiction
over criminal cases were things petitioner knew or could have
known prior to the expiration of the statute of limitations.
Therefore, the instant petition cannot be considered timely
under § 2244(d)(1)(D).
Court has considered whether to issue a certificate of
appealability. To do so, the Court must find a substantial
showing of the denial of a federal constitutional right.
See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir.
1997). A substantial showing is a showing that issues are
debatable among reasonable jurists, a Court could resolve the
issues differently, or the issues deserve further
proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878,
882-83 (8th Cir. 1994)). Petitioner herein has made no such
showing, and the Court will therefore not issue a certificate
IT IS HEREBY ORDERED that petitioner Keith
Butler's petition for writ of habeas corpus is
DISMISSED. A separate order of dismissal
will be entered herewith.
IS FURTHER ORDERED that no certificate of