United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
habeas corpus action is before me for initial review. It
plainly appears from the petition and the files and records
that the petitioner is not entitled to relief.Therefore the
petition for writ of habeas corpus will be denied and
dismissed with prejudice. See Rule 4 of the
Rules Governing § 2254 Cases in the United States
about January 25, 2010, Petitioner entered a “no
contest” plea to attempted murder in the second degree
at what had previously been scheduled for a bench trial. He
was sentenced to 25-40 years in prison. Petitioner was
represented by Jeffery A. Pickens from Nebraska's
Commission on Public Advocacy. Mr. Pickens perfected an appeal,
but on August 27, 2010, the Nebraska Court of Appeals
summarily affirmed. There was no petition for further review
submitted to the Nebraska Supreme Court. The files and
records, including the petition itself, show that no state
post-conviction action was filed either. This federal
petition was not filed until October 21, 2019, more than nine
years after the state proceedings concluded.
recognizes that his habeas petition is far past the one-year
statute of limitation set forth in 28 U.S.C. § 2244(d).
But in answer to question 18 posed in the official form,
Petitioner endeavors to excuse his late filing by in essence
seeking equitable tolling:
The Attorney Jeffery A Pickens failed to file petition under
28 U.S.C. for a writ of Habeas Corpus after my post
conviction he withdrew from the case without telling me what
to do for the next court proceedings I shouldn't be
barred from filing this writ of habeas corpus petition
because I didn't know anything that was going on when the
Attorney Jeffery A Pickens was representing me so I feel that
one year statute of limitations shouldn't apply to me.
Filing no. 1 at CM/ECF pp. 13-14.
a litigant seeking equitable tolling must establish two
elements: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way.” Walker v. Norris, 436 F.3d
1026, 1032 (8th Cir. 2006); see also Kreutzer v.
Bowersox, 231 F.3d 460, 463 (8th Cir. 2000)
(“Equitable tolling is proper only when extraordinary
circumstances beyond a prisoner's control make it
impossible to file a petition on time.”), cert.
denied, 534 U.S. 863 (2001).
Eighth Circuit has reiterated, with respect to equitable
tolling of the deadline for § 2254 petitions,
“that ‘[a]ny invocation of equity to relieve the
strict application of a statute of limitations must be
guarded and infrequent, lest circumstances of individualized
hardship supplant the rules of clearly drafted
statutes.'” Cross-Bey v. Gammon, 322 F.3d
1012, 1015 (8th Cir. 2003) (citation omitted). I take that
Petitioner has not demonstrated that he pursued his rights
diligently. After all, the petition in this case was late by
over eight years.
it is clear that nothing extraordinary stood in
Petitioner's way. He endeavors to lay the responsibility
for his late filing at the feet of his state public
defender. But that will not fly even if I assume the doubtful
proposition that Mr. Pickens was somehow ineffective for the
reasons asserted by Petitioner and that such error occurred
nine or so years ago. See, e.g., Lawrence v. Florida,
549 U.S. 327, 336-37 (2007) (no equitable tolling due to
confusion about the law, court-appointed counsel's
miscalculation, or petitioner's alleged mental
incapacity). Indeed, ordinary ineffective assistance
of counsel claims simply do not provide a basis for equitable
tolling. See, e.g., Muhammad v. United
States, 735 F.3d 812, 816 (8th Cir. 2013) (denying
equitable tolling and stating that an attorney's
negligence or mistake as opposed to serious misconduct is not
generally an extraordinary circumstance that could equitably
toll one-year statute of limitations).
a petitioner cannot appeal an adverse ruling on his petition
for writ of habeas corpus under § 2254 unless he is
granted a certificate of appealability. 28 U.S.C. §
2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P.
22(b)(1). The standards for certificates (1) where the
district court reaches the merits or (2) where the district
court rules on procedural grounds are set forth in Slack
v. McDaniel, 529 U.S. 473, 484-485 (2000). I have
applied the appropriate standard and determined that
Petitioner is not entitled to a certificate of appealability.
ORDERED that the habeas corpus petition, Filing no. 1, is
denied and dismissed with prejudice. No. certificate of
appealability has been or will be issued. Judgment will be
issued by separate document.