United States District Court, D. Utah
MEMORANDUM DECISION & DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS
WADDOUPS UNITED STATES DISTRICT JUDGE
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).
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.
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.
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.
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.
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.”).
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
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