United States District Court, D. Utah
PAUL R. VIGIL, Petitioner,
SCOTT CROWTHER, Respondent.
MEMORANDUM DECISION & ORDER GRANTING MOTION TO
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).
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.
federal habeas petition was filed almost two-and-a-half years
later on July 14, 2016.
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
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
argues that he is entitled to equitable tolling, contending
that he lacked legal access and physical ability to file this
case sooner and that he 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 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
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