NOT TO BE PUBLISHED
OPINION
STUMBO, JUDGE.
Jackie Treat appeals from a Clay Circuit Court order dismissing his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for post-conviction relief based upon Treat's failure to properly verify the motion. Treat claims that the trial court should have equitably tolled the three-year time limit imposed by RCr 11.42. Following a careful review of applicable case law, we affirm the Clay Circuit Court order.
On November 14, 2002, a Clay County jury convicted Treat of the May, 2001, murder of Janet Smith Woods. He was subsequently sentenced to fifty-years imprisonment.
On July 23, 2003, Treat, acting pro se, filed an unverified RCr 11.42 motion in the Clay Circuit Court seeking post-conviction relief based upon his allegations of ineffective assistance of counsel. On October 14, 2003, Treat directly appealed his conviction to the Kentucky Supreme Court. On March 18, 2004, the Supreme Court unanimously affirmed his conviction.
On October 27, 2006, Treat, through counsel, supplemented his pro se motion with additional allegations of ineffective assistance of counsel. The Commonwealth argued that Treat's motion must be denied based upon his failure to verify the original motion. On February 4, 2008, the trial court dismissed Treat's pro se motion based upon its lack of verification. The trial court informed Treat that he could re-file the motion.
Believing that Treat had re-filed the motion, on February 22, 2008, the Commonwealth moved to dismiss Treat's motion based upon his failure to file a verified claim within the statutorily prescribed time period.1 On March 3, 2008, the trial court held a hearing on the Commonwealth's motion. Thereafter, the trial court issued an order in which the court found that a verified motion had not been filed. Based upon Treat's failure to file his RCr 11.42 motion within the three-year time limit, the trial court summarily dismissed Treat's motion.
In his first post-conviction appeal, Treat claimed that the trial court improperly dismissed the re-filed, verified motion. Our Court concluded that Treat's argument was "based upon a misconception" as "[t]he only order from which appeal may be sought dismissed the unverified, pro se RCr 11.42 motion."2 Further, our Court declined to question whether the statute of limitations was equitably tolled because the trial court had not addressed the issue.
On August 10, 2010, Treat moved the trial court to rule upon his re-filed RCr 11.42 motion. The trial court entered an order on November 18, 2010, dismissing the motion. The order provided, "[f]iling a defective motion which did not comply with the plain provisions of RCr 11.42 does not equitably toll the running of limitations." This appeal follows.
RCr 11.42 (2) clearly requires that all motions filed under the statute must be signed and verified. RCr 11.42 (10) provides that,
Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:
(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
Treat does not contest the trial court's finding that he failed to file a verified claim within three-years from his conviction. Instead, he relies solely on the argument that the trial court should have applied the equitable tolling doctrine to the time limitation.
To support his argument, Treat relies primarily upon Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005), overruled by Hallum v. Commonwealth, 347 S.W.3d 55 (Ky. 2011). In Robertson, the Kentucky Supreme Court recognized the applicability of the equitable tolling doctrine to post-conviction motions. Id. at 792. Specifically, Robertson applied the doctrine to the expiration of the three-year time limit where an incarcerated inmate properly prepared and delivered a RCr 11.42 motion to be mailed. Through no fault of the inmate, the motion was not mailed within the three-year time limit. Id. at 792. The Kentucky Supreme Court in Hallum overruled Robertson based upon the subsequent adoption of "the prison mailbox rule," which eliminated the need for the equitable tolling doctrine for those specific cases. Hallum, 347 S.W.3d at 58. Hallum, however, did not prohibit the application of the tolling doctrine to RCr 11.42 motions that do not involve the prison mailbox rule. Therefore, we conclude that the equitable tolling doctrine still applies to post-convictions proceedings that meet strict standards of tolling relief.
To determine whether the equitable tolling doctrine should apply, the Supreme Court adopted the totality-of-the circumstances analysis outlined by the Sixth Circuit Court of Appeals in Dunlap v. United States, 250 F.3d 1001, 1008-9 (6th Cir. 2001). Robertson, 177 S.W.3d at 792. To determine the applicability of tolling, courts should examine the following factors: "(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for his claim." Id., citing Dunlap, 250 F.3d at 1008-9.
Although the Court adopted the Dunlap test in its entirety, the Robertson Court noted that, "Dunlap factors, one, two, and five are essentially incorporated within RCr 11.42 (10) (a). Thus, the primary considerations adopted from Dunlap are factors three (diligence) and four (prejudice)." Id.
The United States Supreme Court provided a similar, streamlined test in Holland v. Florida, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). The Court stated, "a `petitioner' is `entitled to equitable tolling' only if he shows `(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 2562, quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).
Thus, the "critical inquiry remains whether the circumstances preventing a petitioner from making a timely filing were both beyond the petitioner's control and unavoidable despite due diligence." Commonwealth v. Carneal, 274 S.W.3d 420, 429 (Ky. 2009), quoting Commonwealth v. Stacey, 177 S.W.3d 813, 817 (Ky. 2005). Treat failed to meet this burden.
Treat argues that equitable tolling is warranted based on his diligent pursuit of his rights. The equitable tolling doctrine only requires movants to exercise reasonable diligence in pursuit of their rights. Holland, 130 S.Ct. at 2565. We recognize that Treat's early filing of the original, pro se, RCr 11.42 motion, his subsequent appeals and attempts to supplement the original motion, and repeated requests for an evidentiary hearing, certainly reflect persistence. However, RCr 11.42 clearly requires that all motions filed under the statute are signed and verified. Failure to comply with such a basic requirement cannot be described as diligence.
Further, we disagree that Treat was prevented from filing a properly, verified motion based upon the trial court's failure to timely review the original RCr 11.42 motion and his trial counsel's failure to review his pro se motion thoroughly. Although the trial court and Treat's trial counsel, could have, perhaps, been more attentive and meticulous, their oversight does not negate Treat's failure to comply with a basic requirement. Only Treat controlled whether he complied with the rule. Based upon his failure to meet his burden of proof, we conclude that Treat was not entitled to equitable tolling.
Accordingly, the Clay Circuit Court order is affirmed.
ALL CONCUR.
