United States District Court, N.D. Iowa, Eastern Division
MEMORANDUM OPINION AND ORDER
Leonard T. Strand, Chief Judge
matter is before me on petitioner Jessie Jones' pro se
application for a writ of habeas corpus under 28 U.S.C.
§ 2254 (Doc. No. 1), pro se motion to appoint counsel
(Doc. No. 2) and pro se motion to proceed in forma pauperis
(Doc. No. 3). Jones mailed his habeas petition to the
Southern District of Iowa on July 24, 2018. Doc. No. 1. On
November 8, 2018, the Southern District of Iowa transferred
Jones' petition to this court. Doc. No. 5.
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. See Doc. No.
3 at 3. Accordingly, petitioner's motion to proceed in
forma pauperis is denied. Petitioner will be
given forty-five days from the date of this order to pay the
$5.00 filing fee.
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 bar petitions brought pursuant to 28
U.S.C. § 2254. First, that statute requires a petitioner
to exhaust his or her claims in the state court system.
Grass v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011).
Second, without leave of the Eighth Circuit of Appeals,
petitioners are barred from filing a second or successive
habeas petition. 28 U.S.C. § 2244(a)(3)(A). Third,
applications 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). 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 timely only 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 postconviction relief).
was charged in Black Hawk County, Iowa, with murder on
February 2, 2000. State v. Jones, 01071 FECR 090630
(Black Hawk County, Iowa, 2001). A jury convicted him in
2001. Id. Jones filed a timely appeal, and the
appeal was denied by the Iowa Court of Appeals on December
11, 2002. State v. Jones, 2002 WL 31757016, at *3
(Iowa Ct. App. 2002) (unpublished). Jones sought further
review with the Iowa Supreme Court, and the Iowa Supreme
Court denied the application on March 14, 2003. Procedendo
entered five days later. There is no indication Jones filed a
petition for certiorari to the United States Supreme Court.
Therefore, based on those dates, Jones' judgment became
final, and the one-year limitation period began to run ninety
days later, on approximately June 13, 2003.
filed a petition for post-conviction relief on September 15,
2003. Jones v. State, 01071 PCCV 091913 (Black Hawk
County, Iowa, 2019). As unbelievable as it seems, a review of
Iowa Courts Online shows that Jones post-conviction relief
petition actually remains pending before the Iowa District
Court for Black Hawk ...