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Yvellez v. Crowther

United States District Court, D. Utah

August 24, 2018

CHRISTOPHER YVELLEZ, Petitioner,
v.
SCOTT CROWTHER, Respondent.

          MEMORANDUM DECISION & DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

          CLARK WADDOUPS UNITED STATES DISTRICT JUDGE

         THIS MATTER IS BEFORE THE COURT on Petitioner Christopher Yvellez's petition for a writ of habeas corpus. 28 U.S.C.S. § 2254 (2018). The Court has carefully considered the parties' arguments and all relevant law. Now being fully advised, the Court rules that Petitioner's petition must be dismissed as untimely. Id. § 2244(d)(1).

         BACKGROUND

         Petitioner was sentenced on July 31, 2008, then moved to withdraw his guilty plea on a forcible-sexual-abuse charge. That motion was denied on November 3, 2008; Petitioner did not appeal. Petitioner never sought state post-conviction relief. Petitioner filed his federal petition here on September 12, 2016, nearly eight years after his motion to withdraw his plea was denied.

         Petitioner's investigator interviewed Brittany Lamson on June 26, 2015. Her signed statement is attached to his petition. Petitioner contends that Lamson's statement is newly discovered evidence showing that the sexual encounter at issue was consensual and thus he is actually innocent. He further argues that--based on equitable tolling principles--his lack of knowledge about his litigation and his mental illness excuse his untimely filing of this petition. The Court rejects these arguments.

         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). As to Petitioner's claim here that his plea was not knowing and voluntary, the period of limitation ran 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 December 3, 2008, thirty days after the state district court denied Petitioner's motion to set aside the plea (the deadline Petitioner missed for appealing the denial). See Utah R. App. P. 4 (“[T]he notice of appeal . . . shall be filed . . . within 30 days after the date of entry of the judgment or order appealed from.”). Therefore, Petitioner would have had until December 3, 2009 to file his federal petition, excepting applicable tolling. This federal petition was not filed until September 12, 2016--almost seven years after the limitation period expired.

         As to his claim based on newly discovered evidence, Petitioner claims his petition is timely under § 2244(d)(1)(D), which permits claims based on newly discovered evidence to be brought within one year from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C.S. § 2244(d)(1)(D) (2018). However, the date upon which the “newly discovered evidence” was allegedly found was June 26, 2015. Again, this federal petition was not filed until September 12, 2016--almost three months after the limitation period expired.

         1. Statutory Tolling

         Because Petitioner never filed a state post-conviction application, statutory tolling does not apply here. 28 id. 2244(d)(2) (“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 (a) he did not realize until 2010 that his motion to set aside the plea was denied and he suffers from mental illness; and (b) he is actually innocent, based on the Lamson statement and his alleged physical inability to carry out the crime.

         The Court addresses whether the circumstances underlying these arguments trigger equitable tolling to save Petitioner from the limitation period'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). Such 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. ...


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