United States District Court, N.D. Iowa, Central Division
R. READE, UNITED STATES DISTRICT COURT JUDGE
matter is before the court pursuant to the petitioner's
application for a writ of habeas corpus (docket no. 1). The
petitioner submitted such application on August 11,
petitioner neither paid the required $5.00 filing fee,
see 28 U.S.C. § 1914, nor submitted an
application to proceed in forma pauperis. Accordingly, the
petitioner did not properly commence this action, and it is
subject to dismissal on this basis. Nonetheless, the
petitioner shall be directed to submit the $5.00 filing fee
within 30 days of the date of this order.
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 2012, that is, the year in which the
petitioner opted not to file a direct appeal and her
conviction for murder in the second degree became final.
See Crapser v. State, No. 16-0595, 2017 Iowa App.
LEXIS 158 (Iowa Ct. App. Feb. 8, 2017); State v.
Crapser, Case No. FECR010074 (Wright Cnty. Dist. Ct.
2012); 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. §
2254, 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 2012, that
is, the year that the petitioner's conviction became
final, and July 28, 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 in 2012, the
petitioner filed a state post-conviction relief action on
August 7, 2014, and procedendo issued with respect to such
action on March 29, 2017. See Crapser v. State, Case
No. PCCV024088 (Wright Cnty. Dist. Ct. 2016). After her state
post-conviction relief action became final, the petitioner
waited until July 28, 2017 to file this action. Hence, the
petitioner did not pursue any type of state post-conviction
relief for significant periods of time. 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, approximately 30
months, passed without any portion of the applicable period
being tolled. Indeed, because the petitioner's conviction
became final in 2012 and she waited until August 7, 2014 to
file a state post-conviction relief action, the statute of
limitation ran before she ever sought state post-conviction
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)). In this 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
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 is directed to submit the $5.00 filing fee within
30 days of the date of this order.
petitioner's application for a writ of habeas corpus is
clerk's office is directed to enter judgment in ...