United States District Court, D. Utah
MEMORANDUM DECISION & ORDER GRANTING MOTION TO
STEWART UNITED STATES DISTRICT JUDGE
Azlen Adieu Farquoit Marchet, requests federal habeas-corpus
relief. 28 U.S.C.S. § 2254 (2018). Having carefully
considered the relevant documents and law, the Court
dismisses the petition as inexcusably untimely. See
id. § 2244(d).
on his Utah rape conviction, Petitioner was sentenced to
five-years-to-life. The Utah Court of Appeals affirmed his
conviction, and the Utah Supreme Court denied certiorari on
December 10, 2009. State v. Marchet, 2009 UT App
262, aff'd, 221 P.3d 837 (Utah) (table).
Petitioner had ninety days (by March 10, 2010) to file a
petition for certiorari with the United States Supreme Court,
which he did not do.
filed two unsuccessful state petitions for post-conviction
relief in state court, starting on October 18, 2011.
federal habeas petition was filed on May 24, 2017.
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.”
Id. 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 March 10,
2010, 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 March 10, 2011 to file his
federal petition, excepting applicable tolling.
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) (“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.”). However, a
“state court petition . . . that is filed following the
expiration of the federal limitations period ‘cannot
toll that period because there is no period remaining to be
tolled.'” Tinker v. Moore, 255 F.3d 1331,
1333 (11th Cir. 2001) (citation omitted); see also Fisher
v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001)
(same). Because Petitioner did not file his state
post-conviction case until October 18, 2011, it did not toll
AEDPA's limitation period, which had already expired
nearly seven months before.
Petitioner has no ground for statutory tolling. He does
suggest, though, that equitable tolling applies based on
newly discovered evidence. That would bring his suggestion
under the actual-innocence category.
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. Ct., 128 F.3d 1283, 1288 (9th Cir. 1997)
(citation omitted). Those situations include times
"'when a prisoner is actually innocent.'”
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).
of actual innocence proffered must meet all three criteria:
(1) new, (2) reliable, and (3) so probative and compelling
that no reasonable juror could find guilt. See Schlup v.
Delo, 513 U.S. 298, 324-29 (1995). ...