AUDREY G. FLEISSIG, District Judge.
This matter comes before the Court on petitioner Timothy P. O'Laughlin's response to the Court's April 22, 2019 order to show cause. (Docket No. 8). The Court had ordered petitioner to show cause why his 28 U.S.C. § 2254 petition for writ of habeas corpus should not be dismissed as time-barred and moot. Having carefully reviewed petitioner's response, as well as his supplemental response, and for the reasons discussed below, the Court must dismiss this action.
Petitioner is presently being held at the United States Medical Center for Federal Prisoners in Springfield, Missouri, pursuant to a commitment under 18 U.S.C. § 4246.
On December 30, 2004, petitioner was charged in Missouri state court with one count of third-degree assault. State of Missouri v. O'Laughlin, No. 2104R-05539 (21
Petitioner filed his petition for writ of habeas corpus on January 23, 2019, by placing it in his institution's mailing system.
On April 22, 2019, the Court ordered petitioner to show cause why his case should not be dismissed as time-barred and moot.
On April 29, 2019, petitioner complied with the Court's order by filing a response to the order to show cause. (Docket No. 8). He has also filed a supplemental response, which the Court has reviewed. (Docket No. 9).
Petitioner's responses to the Court are disjointed and difficult to understand. More pertinently, they do not address the issues presented in the Court's order of April 22, 2019.
Petitioner begins by stating that "these filings/petitions were generated from dissecting" his federal criminal case. (Docket No. 8 at 1). In that case, he asserts that Judge Perry clearly indicates that his state conviction was invalid and that he has "ongoing ineffective legal misrepresentation by" his assistant federal public defender, Nanci McCarthy. He further claims that his assistant federal public defender was the "supervisor" for the state cases that are the subject of his § 2254 petition.
In his state case, petitioner claims that all persons pertaining to the case were deposed, and that he was cleared. Nevertheless, he states that a plea was conducted "in a hallway" rather than in open court, with no court reporter present. He states that the judge did not use a checklist to verify that he understood his rights. Furthermore, he claims he was not afforded legal research material, despite multiple requests to Ms. McCarthy.
Petitioner mentions the phrase "equitable tolling" but does not use it in the context of explaining why it took him so long to file the instant § 2254 petition. He also alleges that his rights are being continuously violated by selective prosecution, and that these wrongs are still occurring.
The second page of petitioner's response consists entirely of case numbers and arrest numbers. (Docket No. 8 at 2).
Petitioner's supplemental response is similarly difficult to decipher. He titles the filing "Supplemental information to document #7," referring to the Court's April 22, 2019 order. (Docket No. 9 at 1). He then provides a list of statements, including: "impose special assessment;" "violation; non voluntary/documentation;" "violated disclosure plea in open court;" and "nunc pro tunc, equitable tolling, extraordinary, direct appeal/collateral attack." Petitioner does not explain the relevance of these statements to the issues of timeliness and mootness. On the second page, he requests a "waiver [of] ignition interlock [and] expungement of last 3 alleged D.U.I.'s due to selective prosecution." (Docket No. 9 at 2). Again, he does not explain the relevance of these requests to the issues raised in the Court's order to show cause.
On April 22, 2019, the Court ordered petitioner to show cause why his case should not be dismissed as time-barred and moot. Petitioner has filed two responses. Having reviewed both responses, and for the reasons discussed below, the Court must dismiss this action as untimely and moot.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress established a one-year statute of limitations period for petitioners seeking federal habeas relief from state court judgments. Finch v. Miller, 491 F.3d 424, 426 (8
The United States Supreme Court has held that a judgment becomes final under § 2244(d)(1)(A) when the time for seeking review in the state's highest court expires. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). For Missouri prisoners who do not file a direct appeal, judgment becomes final ten days after sentencing. See Camacho v. Hobbs, 774 F.3d 931, 935 (8
Petitioner was sentenced in state court on November 27, 2006. He did not file an appeal. Thus, his judgment became final on December 7, 2006, ten days after his sentencing. Under the AEDPA, petitioner had one year from the date his judgment became final in which to file his federal petition for writ of habeas corpus. Therefore, he had until December 7, 2007, to timely file his petition. He did not file the instant petition until January 23, 2019, approximately eleven years after his limitations period expired. Moreover, petitioner did not file any state post-conviction actions in the interim that might have tolled any of this time.
In his show cause response, petitioner mentions equitable tolling. The statute of limitations in 28 U.S.C. § 2244(d) is subject to the doctrine of equitable tolling. See Gassler v. Bruton, 255 F.3d 492, 495 (8
As to the first prong, the diligence that is required for equitable tolling is "reasonable diligence, not maximum feasible diligence." Burks v. Kelley, 881 F.3d 663, 666 (8
Equitable tolling provides otherwise time-barred petitioners with "an exceedingly narrow window of relief." Jihad, 267 F.3d at 805. "The use of equitable procedures to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes." Earl v. Fabian, 556 F.3d 717, 722 (8
Here, despite mentioning the doctrine of equitable tolling, petitioner makes no effort to demonstrate that he has been diligently pursuing his rights. Furthermore, despite mentioning extraordinary circumstances standing in the way of his filing, he does not articulate what those circumstances were. As such, the doctrine of equitable tolling is not applicable, and the petition is time-barred.
Pursuant to 28 U.S.C. § 2254, "a district court shall entertain an application for writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). An incarcerated petitioner's challenge to the validity of his or her conviction always satisfies the case-or-controversy requirement, because the incarceration itself, or the restrictions imposed by parole, constitute a concrete injury. Spencer v. Kemna, 523 U.S. 1, 7 (1998). Once a petitioner's sentence has expired, though, there must be some concrete and continuing injury, "some collateral consequence of the conviction," in order to maintain the suit. Id. In other words, even if a petitioner is released from custody, the case is not moot if he or she faces significant repercussions from the allegedly unlawful punishment. Leonard v. Nix, 55 F.3d 370, 372-73 (8
Nevertheless, a habeas petitioner is required to be "in custody under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Once the petitioner's sentence for a conviction has completely expired, the collateral consequences of the conviction alone are insufficient to render the petitioner "in custody" for purposes of seeking habeas relief. Id. at 492.
Here, petitioner was not "in custody" pursuant to his state court conviction for third-degree assault at the time he filed this petition. Petitioner was sentenced on that conviction on November 27, 2006 to one year of incarceration. As such, without receiving any additional credit for presentence detainment, he would have been released on or about November 27, 2007, long before he filed this action on January 23, 2019. Furthermore, when petitioner filed the instant petition he was — and remains — confined at the United States Medical Center for Federal Prisoners in Springfield, Missouri, pursuant to a commitment under 18 U.S.C. § 4246.
In short, petitioner did not invoke the jurisdiction of the federal court while in state custody on his conviction in State of Missouri v. O'Laughlin, No. 2104R-05539 (21
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts provides that a district court shall summarily dismiss a § 2254 petition if it plainly appears that the petitioner is not entitled to relief. Here, it is plainly apparent that petitioner's case is time-barred, as his petition was filed approximately eleven years after the expiration of the statute of limitations. Petitioner's response to the Court's show cause order does not establish that equitable tolling is applicable to his case. Therefore, the Court must dismiss his petition pursuant to 28 U.S.C. § 2244. Furthermore, petitioner was not in state custody at the time he filed his § 2254 petition attacking his state conviction. As such, the petition must also be dismissed for mootness.
Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c); and Slack v. McDaniel, 529 U.S. 473, 483-95 (2000).
Accordingly,
