Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jones v. Wachtendorf

United States District Court, N.D. Iowa, Eastern Division

September 4, 2019

JESSIE JAMES JONES, JR, [1] Petitioner,
v.
PATTI WACHTENDORF and STATE OF IOWA, Respondents.

          MEMORANDUM OPINION AND ORDER

          Leonard T. Strand, Chief Judge

         I. INTRODUCTION

         This 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.

         II. MOTION TO PROCEED IN FORMA PAUPERIS

         Petitioner did not pay the $5.00 filing fee but filed a motion to proceed in forma pauperis.[2] 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).[3]

         Petitioner 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.

         III. INITIAL REVIEW

         A. Applicable Standards

         Rule 4 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. 1993).

         Three 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)).

         Due to 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).

         B. Analysis

         Jones 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.

         Jones 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.