United States District Court, N.D. Iowa, Eastern Division
INITIAL REVIEW ORDER
R. READE JUDGE.
matter is before the court pursuant to the petitioner's
application for a writ of habeas corpus (docket no. 2). The
petitioner filed such application on February 1, 2017. 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.
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). It is clear that the statute of limitation
started to run in 2008, that is, the year in which all of the
petitioner's direct appeal proceedings concluded and his
convictions became final. See State v. Willock, 2008
Iowa App. LEXIS 188 (Iowa Ct. App. Mar. 26, 2008); State
v. Willock, 2007 Iowa App. LEXIS 278 (Iowa Ct. App. Mar.
14, 2007); State v. Willock, 2004 Iowa App. LEXIS
1333 (Iowa Ct. App. Dec. 22, 2004); State v.
Willock, Case No. FECR111914 (Black Hawk Cty. Dist. Ct.
2006); 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 2008, that
is, the year that the petitioner's conviction became
final, and February 1, 2017, 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, the petitioner
filed a state post-conviction relief action on May 15, 2008,
and procedendo issued with respect to such action on November
20, 2015. See Willock v. State, 2014 Iowa App. LEXIS
1219 (Iowa Ct. App. Dec. 24, 2014); Willock v.
State, Case No. PCCV105547 (Black Hawk Cty. Dist. Ct.
2013); see also 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”). The petitioner, however, did not pursue
any type of state post-conviction relief from November 20,
2015 to February 1, 2017. Given the period of time that the
petitioner sought state post-conviction relief, it is clear
that over one year, that is, more than 14 months, passed
without any portion of the applicable period being tolled.
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). Hence, there is no 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).
on the foregoing, the petitioner's application for a writ
of habeas corpus shall be denied as untimely. 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.
IS THEREFORE ORDERED:
petitioner's application for a writ of habeas corpus
(docket no. 2) is denied.
clerk's office is directed to enter judgment in favor of
certificate of appealability is denied.
the respondent deems it appropriate to waive the statute of
limitations as an affirmative defense, he is directed to
notify the court by no later than May 15, 2017 that he
prefers to file an ...