United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
STEPHEN R. CLARK, UNITED STATES DISTRICT JUDGE
matter is before the Court upon Petitioner's response to
the Court's September 5, 2019 Order directing him to show
cause why his petition for writ of habeas corpus should not
be dismissed as untimely. Having reviewed and considered
Petitioner's response, the Court has decided to dismiss
the petition without further proceedings.
forth in detail in the Court's September 5, 2019 Order,
Petitioner filed the instant petition after the expiration of
the applicable limitations period set forth in the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Following is a brief summary of the
relevant events. On February 18, 2016, Petitioner entered an
Alford plea in Missouri state court, and on March 25, 2016 he
was sentenced to an aggregate term of 21 years imprisonment.
He did not seek direct review, and judgment therefore became
final on April 4, 2016. He filed a motion for post-conviction
relief on May 23, 2016. The motion court denied the motion,
and Petitioner appealed. The Missouri Court of Appeals
affirmed the motion court's decision, and issued its
mandate on June 7, 2018. Petitioner filed the instant
petition on July 25, 2019, 413 days later. Totaling that
413-day period with the 49-day period that elapsed between
the date the judgment became final and the date Petitioner
filed the motion for post-conviction relief, the sum of 462
days elapsed before Petitioner filed the instant petition.
response now before the Court, Petitioner does not contend
that his petition is timely. Instead, he can be understood to
argue that he is entitled to equitable relief due to the
ineffective assistance of both his trial attorney and his
“appellate attorney.” Plaintiff identifies his
“appellate attorney” as Mr.
support, Petitioner claims he pled guilty because his trial
attorney told him it was too late to go to trial. He also
claims trial counsel withheld files from Mr. Grothoff, which
prevented Mr. Grothoff from raising a meritorious competency
claim on post-conviction review. Review of Petitioner's
response and the attachments thereto shows that during
Petitioner's post-conviction proceedings, Mr. Grothoff
filed a statement advising the motion court that he did not
intend to file an amended Rule 24.035 motion because there
were no potentially meritorious claims that were omitted from
Petitioner's pro se Rule 24.035 motion. Petitioner claims
this amounted to ineffective assistance of counsel.
argues that, had trial counsel not withheld the files, Mr.
Grothoff “would have been able to submit the issues on
appeal that Petitioner should have had a competency hearing,
the outcome of the trial would have been different in that
Petitioner would not have pled guilty, nor coerced by his
counsel to plead guilty.” (ECF No. 8 at 2-3).
Petitioner also asserts that Mr. Grothoff misinformed him
about how much time he had to file documents in his
post-conviction proceedings. Petitioner argues that if Mr.
Grothoff had raised the competency claim on post-conviction
review, Petitioner “would not be time barred, the court
would have found his counsel ineffective and Petitioner would
have been able to successfully advance his appeal hereto, as
well as finding trial court error for failing to stop the
proceedings and order a competency hearing to determine
defendant's ability to stand trial in accordance to the
applicable statutes.” Id. at 4-5.
the AEDPA, a one-year limitations period applies to petitions
filed pursuant to § 2254. 28 U.S.C. §
2244(d)(1)(A). Section 2244(d) is not a jurisdictional bar,
but rather is a statute of limitations subject to equitable
tolling in appropriate circumstances. Holland v.
Florida, 560 U.S. 631, 645 (2010); see also Jihad v.
Hvass, 267 F.3d 803, 805 (8th Cir. 2001). A habeas
Petitioner seeking equitable tolling bears the burden of
establishing that he has been diligently pursuing his rights
and some “extraordinary circumstance” beyond his
control stood in his way and prevented timely filing,
Holland, 560 U.S. at 649, or that government conduct
“lulled” him into inaction. U.S. v.
Hernandez, 436 F.3d 851, 858 (8th Cir. 2006). Equitable
tolling is “an exceedingly narrow window of
relief.” Jihad, 267 F.3d at 805.
case at bar, Petitioner offers nothing tending to show he has
been diligently pursuing his rights, and nothing in the
record permits that conclusion. Even if Petitioner had so
demonstrated, the circumstances he describes would not amount
to “extraordinary circumstances” warranting
equitable relief. Ineffective assistance of counsel is
generally not considered an “extraordinary
circumstance” warranting equitable relief,
Holland, 560 U.S. at 655, and there is no basis here
to depart from this general rule. First, there is no
constitutional right to counsel in seeking state
post-conviction relief. Pennsylvania v. Finley, 481
U.S. 551, 555 (1987). Also, Petitioner does not describe the
sort of conduct that has been found to amount to
“egregious attorney misconduct” warranting
equitable relief. See U.S. v. Martin, 408 F.3d 1089,
1093 (8th Cir. 2005) (describing deliberate
misrepresentations and attempts to mislead a client that
affected the filing of a habeas petition as “egregious
attorney misconduct” warranting equitable relief).
Petitioner also fails to explain how trial counsel's
coercion of an Alford plea or either attorney's error
leading to the abandonment of a claim or delay during
post-conviction review accounts for the passage of time
between the end of post-conviction appellate review and the
date Petitioner filed the instant petition. It therefore
cannot be said that Petitioner has established that an
extraordinary circumstance beyond his control stood in his
way and prevented timely filing. Finally, Petitioner does not
allege, nor does the record suggest, that the state lulled
him into inaction, and it cannot be said that the instant
petition's tardiness is attributable to the state.
See Holland, 560 U.S. at 656 (the mistakes of
counsel are constructively attributed to his client, at least
in the post-conviction context). The burden of demonstrating
grounds warranting equitable tolling rests with the
Petitioner. Earl v. Fabian, 556 F.3d 717, 722 (8th
Cir. 2009) (citing Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)).
foregoing reasons, the Court concludes that the instant
petition is untimely, and that Petitioner has alleged no
proper grounds for equitable relief. The Court will therefore
dismiss the petition without further proceedings.
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)). Because Petitioner has made no such
showing, the Court will not issue a certificate of
IT IS HEREBY ORDERED that Petitioner Peter
Socha's petition for writ of habeas corpus is
DISMISSED. A separate order of dismissal
will be entered herewith.
IS FURTHER ORDERED that Petitioner's motion to
appoint counsel (ECF ...