United States District Court, N.D. Iowa, Central Division
INITIAL REVIEW ORDER
LEONARD T. STRAND, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the court pursuant to the petitioner's
application to proceed in forma pauperis (Doc. No. 1),
application for a writ of habeas corpus (Doc. No. 1-1) and
application for appointment of counsel (Doc. No. 2). The
petitioner submitted those applications on December 20,
petitioner submitted an affidavit that includes a statement
of all the assets he possesses. See generally 28
U.S.C. § 1915. Based on the petitioner's statements,
the court concludes that the petitioner is indigent. Thus,
the petitioner's application to proceed in forma pauperis
shall be granted. The clerk's office shall be directed to
file the petitioner's application for a writ of habeas
corpus without the prepayment of the filing fee.
of the Rules Governing Section 2254 Cases requires the court
to conduct an initial review of the application for a writ of
habeas corpus and summarily dismiss it, order a response or
“take such action as the judge deems
appropriate.” See Rule 4, Rules Governing
Section 2254 Cases. The court may summarily dismiss an
application for a writ of habeas corpus without ordering a
response if it plainly appears from the face of such
application and its exhibits that the petitioner is not
entitled to relief. See id.; 28 U.S.C. § 2243;
Small v. Endicott, 998 F.2d 411, 414 (7th Cir.
1993). For the reasons set forth below, summary dismissal is
appropriate in this case.
for habeas corpus relief are subject to a one-year statute of
limitation as provided in 28 U.S.C. § 2244(d)(1).
“By the terms of [28 U.S.C. §] 2244(d)(1), the
one-year limitation period [. . .] begins to run on one of
several possible dates, including the date on which the state
court judgment against the petitioner became final.”
Ford v. Bowersox, 178 F.3d 522, 523 (8th Cir.
1999). Because the petitioner's judgment
became final before the enactment of the Antiterrorism and
Effective Death Penalty Act, the petitioner had from April
24, 1996 to April 24, 1997 to submit an application for a
writ of habeas corpus. See Id. (explaining that a
one-year grace period applies when a judgment became final
before April 24, 1996); Holmes v. State, No.
96-1527, 2001 Iowa App. LEXIS 200, 2001 WL 246429 (Iowa Ct.
App. Mar. 14, 2001) (observing that direct appeal procedendo
issued on June 22, 1994) (citing State v. Holmes,
520 N.W.2d 632 (Iowa 1994)); State v. Holmes, Case
No. FECR033229 (Black Hawk Cty. Dist. Ct.
1992);see also 28 U.S.C. §
2244(d)(1)(A) (specifying that the 1-year period of
limitation 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”);
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012)
(explaining 28 U.S.C. § 2244(d)(1)(A)); Riddle v.
Kemna, 523 F.3d 850, 855 (8th Cir. 2008) (stating that
the 90 days is not applicable and the one-year statute of
limitation under 28 U.S.C. § 2254 runs from the date
procedendo issued if the petitioner's direct appeal does
not contain a claim that is reviewable by the Supreme Court);
Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir. 2001)
(stating that the running of the statute of limitation for
purposes of 28 U.S.C. § 2244(d)(1)(A) is triggered by:
(1) the conclusion of all direct criminal appeals in the
state system, followed by either the completion or denial of
certiorari proceedings; or (2) the conclusion of all direct
criminal appeals in the state system followed by the
expiration of the 90 days allowed for filing a petition for a
writ of certiorari in the United States Supreme Court)
(citing Smith v. Bowersox, 159 F.3d 345, 348 (8th
the one-year statute of limitation under 28 U.S.C. §
2244, the petitioner's application for a writ of habeas
corpus is only timely if the period was “tolled”
for all but a period of less than one year between April 24,
1996, that is, the date that the grace-period started, and
December 20, 2016, that is, the date that the petitioner
filed the instant action. See Peterson v. Gammon,
200 F.3d 1202, 1204 (8th Cir. 2000). Post-conviction relief
actions filed before or during the limitation period for
habeas corpus actions are “pending” and the
limitation period is tolled during: (1) the time “a
properly filed” post-conviction relief action is before
the district court; (2) the time for filing of a notice of
appeal even if the petitioner does not appeal; and (3) the
time for the appeal itself. See Williams v. Bruton,
299 F.3d 981, 983 (8th Cir. 2002) (discussing application of
28 U.S.C. § 2244(d)(2)); see also Lawrence v.
Florida, 549 U.S. 327, 332 (2007) (“[28 U.S.C.]
§ 2244(d)(2) does not toll the [one-year limitation]
period during the pendency of a petition for
certiorari.”); Evans v. Chavis, 546 U.S. 189,
191 (2006) (holding that an application is tolled during the
interval “between (1) a lower court's adverse
determination, and (2) the prisoner's filing of notice of
appeal, provided that the filing of the notice of
appeal is timely under state law”); Snow, 238
F.3d at 1035-36 (concluding that 28 U.S.C. § 2244(d)(2)
does not toll the limitation period for the 90 days during
which a petitioner could seek certiorari from a state
court's denial of post-conviction relief).
April 24, 1996, the petitioner filed a state post-conviction
relief action on November 21, 1995, and procedendo issued
with respect to such action on July 2, 2001. See Holmes
v. State, No. 96-1527, 2001 Iowa App. LEXIS 200, 2001 WL
246429 (Iowa Ct. App. Mar. 14, 2001); Holmes v.
State, Case No. PCCV074742 (Black Hawk Cty. Dist. Ct.
1996). After his first state post-conviction relief action
became final, the petitioner filed a second state
post-conviction relief action on September 21, 2006, which
became final on December 21, 2009. See Holmes v.
State, Case No. PCCV099609 (Black Hawk Cty. Dist. Ct.
2007). Hence, the petitioner did not pursue any
type of state post-conviction relief from July 2, 2001 to
September 21, 2006. See 28 U.S.C. § 2244(d)(2)
(explaining that “[t]he 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 [is not counted] toward any period of
limitation”). Given the period of time that the
petitioner sought state post-conviction relief, it is clear
that over one year, that is, more than five years, passed
without any portion of the applicable period being tolled. In
fact, it ran after the petitioner's first state
post-conviction relief action became final, and it ran again
after the petitioner's second state post-conviction
relief action became final because the petitioner does not
account for approximately twenty months, that is, from
December 21, 2009 to October 18, 2010, October 3, 2012 to May
23, 2013 and September 26, 2016 to December 20,
the one-year statue of limitation contained in 28 U.S.C.
§ 2244(d)(1) is a statute of limitation rather than a
jurisdictional bar, equitable tolling may apply. See King
v. Hobbs, 666 F.3d 1132, 1136 (8th Cir. 2012); Jihad
v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001);
Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir.
2000); Moore v. United States, 173 F.3d 1131,
1135-36 (8th Cir. 1999). However, “[e]quitable tolling
is proper only when extraordinary circumstances beyond a
prisoner's control make it impossible to file [an
application] on time.” Kreutzer, 231 F.3d at
463; see also Delaney v. Matesanz, 264 F.3d 7, 14
(1st Cir. 2001) (“In the AEDPA environment, courts have
indicated that equitable tolling, if available at all, is the
exception rather than the rule; resort to its prophylaxis is
deemed justified only in extraordinary
circumstances.”); Harris v. Hutchinson, 209
F.3d 325, 330 (4th Cir. 2000) (observing that equitable
tolling is “reserved for those rare instances where-due
to circumstances external to the party's own conduct-it
would be unconscionable to enforce the limitation period
against the party and gross injustice would result”);
Paige v. United States, 171 F.3d 559, 561 (8th Cir.
1999) (stating that equitable tolling is reserved for
extraordinary circumstances beyond a prisoner's control).
“[E]quitable tolling may be appropriate when conduct of
the [respondent] has lulled the [petitioner] into
inaction.” Kreutzer, 231 F.3d at 463 (citing
Niccolai v. United States Bureau of Prisons, 4 F.3d
691, 693 (8th Cir.1993)).
case, the petitioner presents no extraordinary circumstances
justifying the application of equitable tolling. See
Delaney, 264 F.3d at 14 (clarifying that a party who
seeks to invoke equitable tolling bears the burden of
establishing the basis for it). The petitioner merely states
that it would be a miscarriage of justice to bar him from
seeking relief based on the one-year statute of limitation.
But, the petitioner's dissatisfaction with the law is not
a sufficient basis to toll the limitation period. See,
e.g., Gordon v. Ark., 823 F.3d 1188, 1194-96
(8th Cir. 2016) (determining that mental condition did not
cause statute to be equitably tolled); Bear v.
Fayram, 650 F.3d 1120, 1123-25 (8th Cir. 2011) (deciding
that no state-created impediment entitled the petitioner to
equitable tolling); Rues v. Denney, 643 F.3d 618,
621-22 (8th Cir. 2011) (reaffirming that attorney's
miscalculation of filing deadline does not warrant equitable
tolling); Nelson v. Norris, 618 F.3d 886, 892-93
(8th Cir. 2010) (explaining that a petitioner must establish
that he diligently pursued his rights); Earl v.
Fabian, 556 F.3d 717, 724 (8th Cir. 2009) (reiterating
that “lack of access to legal resources does not
typically merit equitable tolling”); Shoemate v.
Norris, 390 F.3d 595, 598 (8th Cir. 2004) (explaining
that confusion about limitations period or the failure to
recognize the legal ramifications of actions taken in prior
post-conviction proceedings did not warrant equitable
tolling); Cross-Bey v. Gammon, 322 F.3d 1012,
1015-16 (8th Cir. 2003) (concluding that lack of
understanding of the law and the effect of a voluntary
dismissal does not amount to an extraordinary circumstance);
Nichols v. Dormire, 11 F. App'x 633, 634 (8th
Cir. 2001) (determining that mental impairment did not
constitute an extraordinary circumstance justifying the
tolling of the limitations period). Indeed, the petitioner
knew in 2001 that Iowa Code section 822.3 required him to
seek post-conviction relief within three years from the date
that his conviction became final. And, rather than seek
habeas corpus relief after his first state post-conviction
relief action became final, he opted to file a second state
post-conviction relief action over five years later. Even
after his second state post-conviction relief action became
final in 2009, the petitioner did not immediately seek habeas
corpus relief. Instead, he waited for more than seven years
to seek habeas corpus relief. Because the petitioner does not
account for approximately twelve years, there is no basis to
toll the applicable period. Cf. Dixon v.
Wachtendorf, 758 F.3d 992, 994 (8th Cir. 2014)
(affirming dismissal of action under 28 U.S.C. § 2254 as
the only claim that the petitioner asserts in his application
for a writ of habeas corpus relates to jury instructions.
But, habeas relief is not available on such a claim. See
Miller v. Fayram, 416 F. App'x 577, 578 (8th Cir.
2011) (concluding that relief based on due process claim was
not available whether or not 28 U.S.C. § 2244(d)
applied); Graves v. Ault, 614 F.3d 501, 509-12 (8th
Cir. 2010) (determining that the Constitution does not
require a state's highest court to make retroactive its
new construction of a criminal statute).
having considered the record, the court concludes that the
assistance of counsel is not warranted. See Davis v.
Scott, 94 F.3d 444, 447 (8th Cir. 1996) (setting forth
factors to be considered for appointment of counsel in civil
case); Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th
Cir. 1991) (same); Wiggins v. Sargent, 753 F.2d 663,
668 (8th Cir. 1985) (stating an indigent litigant enjoys
neither a statutory nor a constitutional right to have
counsel appointed in a civil case). Given the timing of the
instant action and the nature of the claim that the
petitioner asserts in his application for a writ of habeas
corpus, there is no basis to appoint an attorney.
Accordingly, the petitioner's application for appointment
of counsel shall be denied.
on the foregoing, the petitioner's application for a writ
of habeas corpus shall be denied. Judgment shall be entered
in favor of the respondent. As for a certificate of
appealability, the petitioner has not made the requisite
showing. See 28 U.S.C. § 2253(c)(2).
Accordingly, a certificate of appealability shall be denied.
(1) The petitioner's application to proceed in forma
pauperis (Doc. ...