Civil No. 17-cv-926-DRH-CJP
REPORT AND RECOMMENDATION PROUD, Magistrate Judge :
Petitioner Crystal Kay Nash pleaded guilty to charges of drug-induced homicide and possession of a controlled substance in Edwards County, Illinois. She was sentenced to 20 years imprisonment in December 2009. In August 2017, she filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1).
This matter is now before the Court on respondent's Motion to Dismiss Habeas Petition as Time-Barred (Doc. 9), referred to the undersigned pursuant to 28 U.S.C. § 636(b) and SDIL-LR 72.1(a)(2). Despite being warned of the consequences of failing to respond to the motion (Doc. 10), petitioner has not filed a response.
For the reasons discussed below, the undersigned RECOMMENDS that the District Judge GRANT the motion.
1. Grounds Asserted for Habeas Relief
As construed on preliminary review, the petition states the following grounds:
1. Evidence that could have helped petitioner's case was not used in court.
2. Petitioner was subjected to a coercive interrogation.
3. Petitioner's attorney did not explain things to her adequately during the criminal proceedings and was in a hurry to dispose of her case.
2. Relevant Facts and State Court Proceedings
In view of the issue raised in respondent's motion, it is not necessary to delve into the facts underlying petitioner's conviction.
The docket sheet from petitioner's criminal case is attached to Doc. 9 as Exhibit 1. The docket sheet indicates that petitioner was sentenced on December 15, 2009, and she did not file a direct appeal.
The Court uses the document, exhibit, and page numbers assigned by the CM/ECF electronic filing system.
Petitioner filed a state postconviction petition on June 6, 2011. It was denied in January 2012. Doc. 9, Ex. 2 & 3. She filed a Notice of Appeal in the Appellate Court October 2014. It was dismissed the next month. Doc. 9, Ex. 4 & 5.
3. Applicable Legal Standards
28 U.S.C. §2244 creates a one-year limitation period for filing a petition for writ of habeas corpus. Under 28 U.S.C. §2244(d)(1), a person convicted in state court must file her federal habeas petition within one year of the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
The one-year statute of limitations is tolled during the pendency of a "properly-filed" state postconviction petition. 28 U.S.C. §2244(d)(2).
The one-year statute of limitations is also "subject to equitable tolling in appropriate cases." Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). Equitable tolling applies only where the petitioner shows "'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland, 130 S. Ct. at 2562, citing Pace v, DiGuglielmo, 125 S. Ct. 1807, 1814 (2005).
Petitioner does not allege that her habeas claim arises out of newly-discovered facts or a newly-recognized constitutional right, or that the state created an impediment to filing. Therefore, §2244(d)(1)(A) applies, and the one-year limitations period began to run when the judgment became final. In a criminal case, the judgment is the sentence; the judgment is final and the one-year period begins to run when both the conviction and sentence have become final upon the conclusion of direct review or the expiration of time for seeking direct review. Burton v. Stewart, 127 S. Ct. 793, 799 (2007).
Petitioner did not file a direct appeal, so her conviction and sentence became final at the expiration of the time for seeking direct review, 30 days after sentence was imposed. The one-year period therefore started running on January 14, 2010.
Under 28 U.S.C. §2244(d)(2), the one-year limitations period is tolled during the pendency of a "properly filed" application for postconviction relief. Plaintiff did not file a state postconviction petition until June 6, 2011. By that date, the one-year period had already expired. A postconviction petition filed after the one-year period has expired does not serve to revive the limitations period. DeJesus v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009).
The habeas petition was clearly untimely and must be dismissed unless petitioner is entitled to equitable tolling. Petitioner acknowledges that the petition was late. She explains her late filing by saying "I didn't know how to go about it. I want to prove I didn't kill my son." Doc. 1, p. 13.
Petitioner's son was the victim of the drug-induced homicide. --------
The Supreme Court has emphasized that "the circumstances of a case must be 'extraordinary' before equitable tolling can be applied." Holland v. Florida, 130 S. Ct. 2549, 2564 (2010). Equitable tolling will be applied only where the petitioner shows that she has been pursuing her rights diligently and that "some extraordinary circumstance" stood in her way and prevented timely filing. Gray v. Zatecky, 865 F.3d 909, 912 (7th Cir. 2017). Here, petitioner has not demonstrated that she has been diligently pursuing her rights. The sparse state court proceedings suggest that she had not. And, her lack of lack of legal knowledge is not an extraordinary circumstance justifying equitable tolling. Gray, 865 F.3d at 912-913. See also, Taylor v. Michael, 724 F.3d 806, 811 (7th Cir. 2013).
The Court notes that petitioner explains her failure to exhaust state remedies by saying that she was not "stable" and was on a lot of medications. Doc. 1, pp. 5, 7. However, in order to be entitled to equitable tolling, petitioner must show that her mental condition actually prevented her from managing her affairs, and she must give a "particularized description of how her condition adversely affected her capacity to function." Obriecht v. Foster, 727 F.3d 744, 751 (7th Cir. 2013). Petitioner's vague assertion is not sufficient.
Lastly, the undersigned has considered whether petitioner meets the fundamental miscarriage of justice standard of McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).
McQuiggin holds that "a credible showing of actual innocence" may overcome the bar of the one-year statute of limitations for filing a habeas petition under 28 U.S.C. §2254. McQuiggin, 133 S. Ct. at 1931. The Supreme Court reaffirmed the Schlup standard for a credible showing of actual innocence, cautioning that "tenable actual-innocence gateway pleas are rare" and describing the Schlup standard as "demanding" and "seldom met." McQuiggin, 133 S. Ct. at 1928.
A credible claim of actual innocence "requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup v. Delo, 115 S. Ct. 851, 865 (1995). The Schlup standard permits habeas review of defaulted claims only in the "extraordinary case" where the petitioner has demonstrated that "more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt—or, to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt." House v. Bell, 126 S. Ct. 2064, 2077 (2006).
Here, petitioner has not come forward with any new evidence at all. She simply says that she wants to prove that she did not kill her son. This falls far short of meeting the demanding Schlup standard.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, this Court must "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate should be issued only where the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c)(2).
Where a habeas petition is dismissed on procedural grounds without reaching the underlying constitutional issue, the petitioner must show that reasonable jurists would "find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000). Both components must be established for a COA to issue.
Here, it is clear that Nash's petition is time-barred, she is not entitled to equitable tolling, and she has not advanced a credible claim of actual innocence within the meaning of McQuiggin and Schlup. No reasonable jurist would find the issues debatable. Accordingly, the District Judge should deny a certificate of appealability.
For the foregoing reasons, the undersigned RECOMMENDS that the District Judge GRANT the Motion to Dismiss (Doc. 9) and dismiss this action with prejudice. In addition, the undersigned RECOMMENDS that the District Judge DENY a certificate of appealability.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1(b), the parties may object to any or all of the proposed findings and recommendations set forth above. The failure to file a timely objection may result in the waiver of the right to challenge this Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004).
IT IS SO ORDERED.
DATE: July 27, 2018.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE