United States District Court, D. Utah, Central Division
MEMORANDUM DECISION & ORDER DISMISSING PETITION
FOR WRIT OF HABEAS CORPUS
A. KIMBALL, UNITED STATES DISTRICT JUDGE.
MATTER IS BEFORE THE COURT on Petitioner Clarence Shedwood
Branch's petition for a writ of habeas corpus. 28
U.S.C.S. § 2254 (2017). The Court has carefully
considered the pleadings and relevant law. Now being fully
advised, the Court concludes that Petitioner's petition
is untimely. See 28 id. § 2244(d)(1). The Court
therefore DISMISSES the petition with prejudice.
law imposes “a 1-year period of limitation . . . to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.” 28
id. § 2244(d)(1). This period generally runs
from “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time
for seeking such review.” Id. Petitioner did
not appeal. Therefore, Petitioner's conviction became
final on the last day he could have filed a notice of appeal.
requires a notice of appeal to be filed “within 30 days
after the date of entry of the judgment or order appealed
from.” Utah R. App. P. 4(a). “Failure to timely
file an appeal … constitutes a waiver of the right to
appeal.” State v. Houskeeper, 2002 UT 118,
¶ 23, 62 P.3d 444.
judgment was entered December 22, 2005. The last day he could
have filed a timely notice of appeal was thirty days
later--January 21, 2006. By statute, that is the date
Petitioner's conviction thus became final. The federal
one-year limitation period began running on that date and
expired on January 21, 2007. Petitioner filed his petition in
this case on January 4, 2016, nearly nine years late.
statute, the one-year period may be tolled while a state
post-conviction petition is pending. See 28 U.S.C.S.
§ 2244(d)(2) (2017). The law provides that “[t]he
time during which a properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection.” Id. However, a “state court
petition . . . that is filed following the expiration of the
federal limitations period ‘cannot toll that period
because there is no period remaining to be
tolled.'” Tinker v. Moore, 255 F.3d 1331,
1333 (11th Cir. 2001) (quoting Webster v. Moore, 199
F.3d 1256, 1259 (11th Cir. 2000); see also Fisher v.
Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001) (same).
Because Petitioner did not file his state post-conviction
case until March 12, 2013, it did not toll AEDPA's
limitation period, which had already expired more than six
years before in January 2007.
Petitioner has no ground for statutory tolling. He does,
however, offer arguments for equitable tolling. He suggests
that he is not trained in the law; did not initially realize
he may have a claim; was delayed by the allegedly
state-created impediment of contract-attorney lack of help
and conflict of interest; and is actually innocent.
Court addresses whether the circumstances underlying these
arguments trigger equitable tolling to save Petitioner from
the period of limitation's operation. "Equitable
tolling will not be available in most cases, as extensions of
time will only be granted if 'extraordinary
circumstances' beyond a prisoner's control make it
impossible to file a petition on time." Calderon v.
U.S. District Court, 128 F.3d 1283, 1288 (9th Cir. 1997)
(citation omitted). Those situations include times
"'when a prisoner is actually innocent'" or
"'when an adversary's conduct--or other
uncontrollable circumstances--prevents a prisoner from timely
filing, or when a prisoner actively pursues judicial remedies
but files a defective pleading during the statutory
period.'" Stanley, 2005 U.S. App. LEXIS
9872, at *4 (quoting Gibson, 232 F.3d at 808
(citation omitted)). And, Petitioner "has the burden of
demonstrating that equitable tolling should apply."
Lovato v. Suthers, No. 02-1132, 2002 U.S. App. LEXIS
14371, at *5 (10th Cir. July 15, 2002) (unpublished). Against
the backdrop of these general principles, the Court considers
Petitioner's specific arguments.
or Uncontrollable Circumstance
asserts that his lateness should be overlooked because he
lacked legal resources, legal knowledge, and had only limited
help and misinformation from prison contract attorneys.
Petitioner has "failed to elaborate on how these
circumstances" affected his ability to bring his
petition earlier. Johnson v. Jones, No. 08-6024,
2008 U.S. App. LEXIS 8639, at *5 (10th Cir. April 21, 2008)
(order denying certificate of appealability). The argument
that a prisoner "had inadequate law library
facilities" does not support equitable tolling.
McCarley v. Ward, Nos. 04-7114, 04-7134, 2005 U.S.
App. LEXIS 14335, at *3-4 (10th Cir. July 15, 2005); see
also Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)
("It is not enough to say that the . . . facility lacked
all relevant statutes and case law or that the procedure to
request specific materials was inadequate."). Further,
it is well settled that "'ignorance of the law, even
for an incarcerated pro se petitioner, generally does not
excuse prompt filing.'" Marsh v. Soares,
223 F.3d 1217, 1220 (10th Cir. 2000) (citation omitted).
Finally, simply put, "'[t]here is no constitutional
right to an attorney in state post-conviction proceedings.
Consequently, a petitioner cannot claim constitutionally
ineffective assistance of counsel in such
proceedings.'" Thomas v. Gibson, 218 F.3d
1213, 1222 (10th Cir. 2000) (quoting Coleman v.
Thompson, 501 U.S. 722, 752 (1991) (citations omitted));
see also 28 U.S.C.S. § 2254(i) (2017)
("The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall
not be a ground for relief in a proceeding arising under
section 2254."). It follows that Petitioner's
contention that the prison contract attorneys'
misinformation and lack of help thwarted his habeas filings
does not toll the period of limitation. See Steed v.
Head, 219 F.3d 1298, 1300 (11th Cir. 2000) ("An
attorney's miscalculation of the limitations period or
mistake is not a basis for equitable tolling.").
has not met his burden of showing that--during the running of
the federal period of limitation and beyond--he faced
extraordinary circumstances that stopped him from timely
filing or took specific steps to "'diligently pursue
his federal claims.'" Id. at 930.