United States District Court, D. Utah
MEMORANDUM DECISION & ORDER GRANTING MOTION TO
DISMISS HABEAS-CORPUS PETITION
Eric Allen Glosson, petitions for federal habeas relief. 28
U.S.C.S. § 2254 (2019). Having carefully considered the
relevant documents and law, the Court concludes that
Petitioner's petition is inexcusably untimely. See 28
id. § 2244(d)(1). The petition is therefore
dismissed with prejudice.
law 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
id. § 2244(d)(1). The period generally runs
from the day “the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” Id.
requires a notice of appeal to be filed “within 30 days
after the date of entry of the judgment or order appealed
from.” Utah R. App. P. 4(a). “Failure to timely
file an appeal … constitutes a waiver of the right to
appeal.” State v. Houskeeper, 2002 UT 118,
judgment was entered November 8, 2012. (Doc. No. 1.) The last
day Petitioner could have filed a timely notice of appeal was
thirty-two days later--December 10, 2012 (Monday). When he
did not file a notice of appeal, Petitioner's conviction
became final. The federal one-year limitation period began
running on that date and expired on December 10, 2013.
Petitioner filed his petition here on December 1, 2017,
nearly four years too late. (Id.)
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) (2019). “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.” Id.
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 May 5, 2014, it did not toll
the limitation period, which had already expired almost five
months before. (Doc. No. 7-6.)
Petitioner has no ground for statutory tolling. He does,
however, offer arguments for equitable tolling. He suggests
that he was not knowledgeable about the appeals and
habeas-corpus processes; lacked legal resources; did not
initially realize he may have a claim; and was in federal
prison without access to Utah law.
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'" 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, 133 Fed.Appx.
479, 480 (10th Cir. 2005) (quoting Gibson v.
Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citation
omitted)). And, Petitioner "has the burden” of
showing equitable tolling applies. Lovato v.
Suthers, 42 Fed.Appx. 400, 402 (10th Cir. 2002)
Extraordinary or Uncontrollable Circumstance
generally fails to spell out how circumstances affected his
ability to bring his petition earlier. Johnson v.
Jones, 274 Fed.Appx. 703, 705 (10th Cir. 2008). For
instance, he has not specified how, between December 10,
2012, and December 1, 2017, he was continually and thoroughly
thwarted by uncontrollable circumstances from filing. Nor has
he detailed who and what would not allow him to file some
kind of petition. He also does not hint what continued to
keep him from filing in the nearly four years beyond the
limitation period or how extraordinary circumstances eased to
allow him to file this habeas-corpus petition on December 1,
2017. Such vagueness is fatal to his contention that
extraordinary circumstances kept him from timely filing.
Petitioner asserts his lateness should be excused because he
lacked legal resources and knowledge, and was in a federal
facility without access to Utah law. However, the argument
that a prisoner "had inadequate law library
facilities" does not support equitable tolling.
McCarley v. Ward, 143 Fed.Appx. 913, 914 (10th Cir.
2005); see also Miller v. Marr, 141 F.3d 976, 978
(10th Cir. 1998) ("It is not enough to say that the
[out-of-state] facility lacked all relevant statutes and case
law or that the procedure to request specific materials was
inadequate."); see also Piotrowski v. Sec'y,
Dep't of Corr., No. 8:12-CV-2290-T-36AEP, 2015 U.S.
Dist. LEXIS 99742, at *11 (M.D. Fla. July 30, 2015) (stating
petitioner failed “to show that an alleged lack of
access to Florida legal materials during his out-of-state
incarceration is a state- created impediment in violation of
the Constitution or laws of the United States”);
Clemons v. Kansas, No. 07-3054-SAC, 2009 U.S. Dist.
LEXIS 98041, at *6 (D. Kan. Oct. 14, 2009)
(“[P]etitioner maintains his transfer to federal
custody outside [Kansas resulted in] lack of Kansas resources
and legal documents [which delayed] him from participating in
any legal challenge regarding his conviction and sentence . .
. . On the face of the record, however, this is insufficient
to demonstrate either extraordinary circumstances or the due