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Vigil v. Crowther

United States District Court, D. Utah

August 15, 2018

PAUL R. VIGIL, Petitioner,
v.
SCOTT CROWTHER, Respondent.

          MEMORANDUM DECISION & ORDER GRANTING MOTION TO DISMISS

          CLARK WADDOUPS JUDGE.

         Petitioner, Paul R. Vigil, requests federal habeas corpus relief. 28 U.S.C.S. § 2254 (2018). Having carefully considered the amended petition, motion to dismiss, Petitioner's response, and relevant law, the Court agrees with the State that the petition must be dismissed as untimely. See Id. § 2244(d).

         FACTS

         Petitioner was convicted in Utah state court of aggravated kidnaping and rape, possession of controlled substance with intent to distribute, and possession of a dangerous weapon. The Utah Court of Appeals affirmed his conviction, State v. Vigil, 2013 UT App 167, 306 P.3d 845; and the Utah Supreme Court denied certiorari on November 7, 2013, 317 P.3d 432 (Utah). Petitioner had ninety days (by February 5, 2014) to file a petition for certiorari with the United States Supreme Court, which he did not do. Petitioner did not seek state post-conviction relief.

         This federal habeas petition was filed almost two-and-a-half years later on July 14, 2016.

         ANALYSIS

         Federal statute 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 U.S.C.S. § 2244(d) (2018). The 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. That occurred here on February 5, 2014, ninety days after the Utah Supreme Court denied a writ of certiorari, during which Petitioner could have sought review in the United States Supreme Court. Therefore, Petitioner would have had until February 5, 2015 to file his federal petition, excepting applicable tolling. This federal petition was not filed until July 14, 2016--almost a year and a half after the limitation period expired.

         1. Statutory Tolling

         Because Petitioner never filed a state post-conviction application, statutory tolling does not apply here. Id. (“The 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.”).

         2. Equitable Tolling

         Petitioner argues that he is entitled to equitable tolling, contending that he lacked legal access[1] and physical ability to file this case sooner and that he is actually innocent.

         The 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 v. McKune, No. 05-3100, 2005 U.S. App. LEXIS 9872, at *4 (10th Cir. May 23, 2005) (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 arguments.

         a. Uncontrollable Circumstances

         Petitioner asserts that his lateness should be overlooked because he lacked legal access (e.g., legal resources and knowledge and ability to mail legal documents) and physical capacity to pursue litigation. 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). For instance, he has not specified how, between February 5, 2014 and February 5, 2015, he was continually and thoroughly thwarted by uncontrollable circumstances from filing. Nor has he detailed who and what in particular would simply not allow him to file. He also does not hint what continued to keep him from filing even in the almost year and a half beyond the limitation ...


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