United States District Court, D. Utah, Central Division
MEMORANDUM DECISION & ORDER GRANTING MOTION TO
DISMISS HABEAS CORPUS PETITION
Waddoups, United States District Judge.
Dana Leon Lindsey, requests federal habeas-corpus relief. 28
U.S.C.S. § 2254 (2018). Having carefully considered the
pleadings and relevant law, the Court concludes that
Petitioner's petition is untimely. See 28 id.
§ 2244(d)(1). The Court therefore DISMISSES the petition
law imposes a one-year period of limitation on “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.
states a notice of appeal must be filed “within 30 days
after the date of entry of the judgment or order appealed
from.” Utah R. App. P. 4(a). “A judgment is
entered when it is signed by the judge and filed by the clerk
of court.” State v. Grant, 2002 UT 100, ¶
3, 256 P.3d 1100. (citation omitted). “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 on August 2, 2013. The last day he
could have filed a timely notice of appeal was thirty days
later, September 1, 2013. By statute, that is the date
Petitioner's conviction was final. The federal one-year
limitation period began running on that date and expired on
September 1, 2014. Petitioner filed his petition in this case
on April 11, 2016--588 days 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) (2018). But Petitioner did not file a state
Petitioner has no ground for statutory tolling. He does,
however, offer arguments for equitable tolling. He excuses
his untimely filing based on his mental illness.
Court addresses whether that circumstance triggers 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. Dist.
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 v. McKune, No. 05-3100,
2005 U.S. App. LEXIS 9872, at *4 (quoting Gibson v.
Klinger, 232 F.3d 799, 808 (10th Cir. 2000)
(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 argument.
or Uncontrollable Circumstance
asserts that his lateness should be overlooked because of his
mental disability. “Equitable tolling of a limitations
period based on mental incapacity is warranted only in
exceptional circumstances that may include an adjudication of
incompetence, institutionalization for mental incapacity, or
evidence that the individual is not capable of pursuing his
own claim because of mental incapacity.” Reupert v.
Workman, 45 Fed.Appx. 852, 854 (10th Cir. 2002)
(unpublished) (quotations omitted); see also Rantz v.
Hartley, 577 Fed.Appx. 805, 810 (10th Cir. 2014)
(unpublished) (“[F]ederal courts equitably toll the
limitations period only when there is a severe or profound
mental impairment, such as resulting in institutionalization
or adjudged mental incompetence.”) (citing Fisher
v. Gibson, 262 F.3d 1135, 1143, 1145 (10th Cir. 2001)).
Indeed, “ ‘mental impairment is not per
se a reason to toll a statute of limitations.'
” Rantz, 577 Fed.Appx. at 810 (quoting
Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir.
2009)); see also Saenz-Jurado v. Colorado, 329
Fed.Appx. 197, 199 (10th Cir. 2009) (rejecting mental illness
as basis for equitable tolling when Petitioner's
“allegations on this point are conclusory and lack
support in the record”). It is important to note that
the Tenth Circuit “ ‘has yet to apply equitable
tolling on the basis of mental incapacity.' ”
Rantz, 577 Fed.Appx. at 810 (quoting McCall v.
Wyo. Att'y Gen., 339 Fed.Appx. 848, 850 (10th Cir.
2009)). Finally, “ ‘it is not enough for a party
to show that he experienced extraordinary circumstances. He
must further demonstrate that those circumstances caused him
to miss the original filing deadline.' ”
Id. at 811 (quoting Harper v. Ercole, 648
F.3d 132, 137 (2d Cir. 2011)).
has not met his burden here; in other words, he has not
specified any of these exceptional circumstances and linked
such circumstances to actual dates and lack of mental
capacity. He has not even hinted at an adjudication,
institutionalization, or evidence that, between July 22, 2013
and April 11, 2016, in particular, he suffered from such
mental incapacity that it was impossible for him to pursue
habeas claims. He has not stated why he was able to file a
habeas case on April 11, 2016, but was not during the running
of the period of limitation and 599 days beyond. See
Sampson v. Patton, 598 Fed.Appx. 573, 575-76 (10th Cir.
2015) (denying equitable tolling based on assertion of mental
illness when Petitioner did not specify or provide evidence
of timeline of mental incapacitation); Rawlins v.
Newton-Embry, 352 Fed.Appx. 273, 275-76 (10th Cir. 2009)
(unpublished) (“[Petitioner] does not provide a date or
even a month to narrow the time frame--she does not state
when this nervous breakdown began, how long it ...