United States District Court, N.D. Iowa, Cedar Rapids Division
R. READER JUDGE.
before the court is a 28 U.S.C. § 2254 petition (docket
no. 1) filed by Travis Hoppe. Also, before the court is
Hoppe's motion to proceed in forma pauperis (docket no.
MOTION TO PROCEED IN FORMA PAUPERIS
did not pay the $5.00 filing fee but filed a motion to
proceed in forma pauperis. Doc. No. 3. For the court to authorize
the commencement of an action without the prepayment of the
filing fee, a person must submit an affidavit that includes a
statement of all the assets the person possesses.
See 28 U.S.C. § 1915(a)(1). In addition, a
prisoner must submit a certified copy of the trust fund
account statement (or institutional equivalent) for the
6-month period immediately preceding the filing of the
complaint, obtained from the appropriate official of each
prison at which the prisoner was or is confined. See
28 U.S.C. § 1915(a)(2); see also Rules
Governing § 2254 Cases, Rule 3(a)(2) (making the
affidavit requirement of 28 U.S.C. § 1915 applicable to
prisoners proceeding in § 2254 cases).
filed a motion to proceed in forma pauperis that complies
with the requirements set out above. However, based on his
filings, petitioner has the capability to pay an initial
partial filing fee in excess of $5.00. (docket no. 2 at 2).
Accordingly, petitioner's motion to proceed in forma
pauperis (docket no. 2) is denied.
Petitioner will be given thirty days from the date of this
order to pay the $5.00 filing fee.
§ 2254 INITIAL REVIEW STANDARD
of the Rules Governing Section 2254 Cases requires the court
to conduct an initial review of an 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.
primary issues often result in summary dismissal in 28 U.S.C.
§ 2254 cases. The first reason that often leads to
summary dismissal is that the petition obviously fails on its
merits. The second reason that often leads to summary
dismissal is that the petitioner failed to exhaust the
available remedies in the state court system. See Grass
v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011). The final
reason that often leads to summary dismissal of applications
for habeas corpus relief is the strict one-year statute of
limitation provided in 28 U.S.C. § 2244(d)(1).
calculation regarding the statute of limitations is often
complicated. “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). See 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 Cir. 1998)).
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 when the
grace-period started, and 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).
INITIAL REVIEW ANALYSIS
2014, Hoppe plead guilty in Linn County, Iowa, to theft in
the first degree. In December 12, 2014, Hoppe was sentenced
to a ten-year term of incarceration. State v. Hoppe,
06571 FECR 107375 (Linn County, Iowa, 2014). Hoppe filed a
timely appeal, which was denied by the Iowa Court of Appeals
on October 24, 2015. State v. Hoppe, 2015 WL 5965596
*1 (Iowa Ct. App. 2015) (unpublished). However, his
ineffective assistance of counsel claim was preserved for
review during a subsequent post-conviction relief action.
Id. Hoppe did not seek further review of that
decision at the Iowa Supreme Court, but he did file a timely
post-conviction action (Hoppe v. State, 06571 PCCV
085030 (Linn County, Iowa, 2017)) on March 28, 2016. His
post-conviction case was denied by the Iowa state district
court, and by the Iowa Court of Appeals on November 21, 2018.
Hoppe v. State, 2018 WL 6120045 (Iowa Ct. App. 2018)
(unpublished). Hoppe did not seek further review from the
Iowa Supreme Court and mailed this petition on January 22,
on the forgoing, Hoppe had at least three months remaining on
the one-year limitation period when he mailed his § 2254
petition. Accordingly, it is timely filed. However,
Hoppe's petition fails for two other reasons. First,
Hoppe did not seek further review of the Iowa Court of
Appeals decision denying his ineffective assistance of
counsel claims. The Eighth Circuit Court of Appeals has
[u]nder [Iowa's] system, a party wishing to appeal a
ruling of an Iowa district court may appeal to the supreme
court. Iowa R. App. P. 6.1(1) (2007); see Effler,
769 N.W.2d at 883. The supreme court may then choose to
transfer any case (except a case in which state law grants
that court exclusive jurisdiction) to the court of appeals.
Iowa Code §§ 602.4102(2), 5103(3); Iowa R. App. P.
6.401(1) (2007); see Effler, 769 N.W.2d at 883.
“Once a transfer has been made, the supreme court no
longer has jurisdiction of the matter, unless a party seeks
further review of the court of appeals decision.”
Effler, 769 N.W.2d at 883; see Iowa Code
§ 602.4102(2). The supreme court regains jurisdiction
only if it grants an application for further review.
Effler, 769 N.W.2d at 883; Iowa Code §
602.4102(2), (4); see Iowa R.App. P. 6.402 (2007).
Nothing in Iowa law indicates that an application for further
review in the supreme court is an extraordinary measure
outside of the state's established appellate review
process. Cf. Akins v. Kenney, 410 F.3d 451, 454 (8th
Cir. 2005) (analyzing Nebraska's appellate review