United States District Court, N.D. Iowa, Cedar Rapids Division
INITIAL REVIEW ORDER
LEONARD T. STRAND CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the court pursuant to the petitioner's
application for a writ of habeas corpus (Doc. No. 1) and
application for appointment of counsel (Doc. No. 2). The
petitioner submitted those applications on December 29,
2016. The petitioner paid the $5.00 filing fee.
See 28 U.S.C. § 1914(a) (requiring $400.00
filing fee for civil actions, except that on application for
a writ of habeas corpus the filing fee is $5.00).
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.
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). It is clear that the statute of limitation
started to run in 2012, that is, the year in which all of the
petitioner's direct appeal proceedings concluded and his
conviction became final. See State v. Williams, No.
10-1254, 2011 Iowa App. LEXIS 1266 (Iowa Ct. App. Nov. 9,
2011); State v. Williams, Case No. FECR159157 (Black
Hawk Cty. Dist. Ct. 2010); 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 18,
2012, that is, the date that the petitioner's conviction
became final, and December 29, 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).
the petitioner's conviction became final on April 18,
2012, the petitioner filed a state post-conviction relief
action on August 7, 2012, and the Iowa District Court for
Black Hawk County summarily dismissed it on September 18,
2013. See Williams v. State, Case No. PCCV119668
(Woodbury Cty. Dist. Ct. 2013). In addition, after his state
post-conviction relief action became final, the petitioner
waited until February 4, 2014 to file a second state
post-conviction relief action, which became final on October
11, 2016. See Williams v. State, No. 15-0819, 2016
Iowa App. LEXIS 798 (Iowa Ct. App. Aug. 17, 2016);
Williams v. State, Case No. PCCV123946 (Black Hawk
Cty. Dist. Ct. 2013). Both of the petitioner's state
post-conviction relief actions need to have been properly
filed in order for the petitioner's application for a
writ of habeas corpus to be timely. 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”). It is unclear whether they were
properly filed, especially considering that the Iowa District
Court for Black Hawk County summarily dismissed the
petitioner's first state post-conviction action and it
appears that the Iowa Court of Appeals relied on Iowa Code
section 822.8 when affirming the dismissal of the
petitioner's second state post-conviction relief action.
See Williams v. State, No. 15-0819, 2016 Iowa App.
LEXIS 798 (Iowa Ct. App. Aug. 17, 2016).
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)).
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). Because the petitioner had no difficulties when
submitting his state post-conviction relief applications or
the instant application for a writ of habeas corpus, he
offers no valid basis to toll the applicable 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, although the
petitioner asserts that he missed the deadline as a result of
state-created impediments, that is, court-appointed
counsel's failure to inform him of the AEDPA, the lack of
an adequate law library until 2015 and the state courts'
failure to protect him under the state post-conviction
statutes, the petitioner fails to acknowledge that he filed a
prior application for a writ of habeas corpus in which he
specifically addressed the applicable statute of limitation.
See Williams v. State of Iowa, Case #
1:11-cv-00100-LRR (N.D. Iowa 2011).
on the record, it appears that the statute of limitation bars
the petitioner's action. Nevertheless, the court finds
that it will benefit from the submission of relevant state
court records and a response from the respondent. Hence, the
clerk's office is directed to send a copy of the
application for a writ of habeas corpus by certified mail to
the respondent and the Iowa Attorney General in accordance
with Rule 4, Rules Governing Section 2254 Cases. The
respondent is directed to file an answer or dispositive
motion to the application for a writ of habeas corpus in
accordance with Rule 5, Rules Governing Section 2254 Cases,
by no later than March 31, 2017.
having considered the record, the court concludes that the
assistance of counsel is not warranted at this time. 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). Because it is very likely that the statute of
limitation bars the petitioner's action, there is no
basis to appoint an attorney. Accordingly, the
petitioner's application for appointment of counsel (Doc.
No. 2) is denied. If it appears that the assistance of
counsel is necessary, the court will sua sponte appoint an
attorney to represent the petitioner.
 The petitioner signed his application
for a writ of habeas corpus on December 28, 2016, but the
envelope that included his application for a writ of habeas