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Kraft v. Peters

United States District Court, S.D. Alabama, Southern Division

December 19, 2017

GARRY CLEVE KRAFT, #263478, Petitioner,
v.
KENNETH PETERS, Respondent.

          SUPPLEMENTAL REPORT AND RECOMMENDATION

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE

         Petitioner Garry Cleve Kraft (“Petitioner”), an Alabama prisoner proceeding pro se, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). The Court has referred the petition to the undersigned Magistrate Judge who, under S.D. Ala. GenLR 72(a)(2)(R), is authorized to require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of the petition, in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules Governing Section 2254 Cases in the United States District Courts. See S.D. Ala. GenLR 72(b); (11/28/2016 and 01/09/2017 electronic references).

         On October 19, 2017, the undersigned issued a Report and Recommendation recommending that this matter be dismissed as time barred. (Doc. 18). Petitioner filed an objection to the Report and Recommendation, arguing that he is entitled to equitable tolling, which has been referred to the undersigned for evaluation. (Doc. 19). As grounds, Petitioner states that he has shown extraordinary circumstances and due diligence based on the arguments made in briefing in his Alabama Rule of Criminal Procedure 32 petition. (Doc. 19).

         I. ANALYSIS

         Petitioner's conviction became final on September 2, 2009. Under § 2244(d)(1), Petitioner had until September 2, 2010 to file a timely § 2254 petition. On August 5, 2010, three hundred and thirty-seven days into the limitations period, Petitioner filed his first Rule 32 petition. Thus, his § 2254 limitations period was tolled from August 5, 2010 to March 23, 2011, when the Alabama Court of Criminal Appeals issued a Certificate of Judgment on his first Rule 32 petition. At that point, he had twenty eight days left in the one year AEDPA limitations period.[1] In order to be timely under § 2244, his § 2254 should have been filed by April 20, 2011. Petitioner did not file the instant petition until November 9, 2016. Thus, Petitioner's motion is untimely pursuant to § 2244(d). However, through his objection to the October 5, 2017 Report and Recommendation, Petitioner has raised an equitable tolling argument. As grounds, he “adopts” arguments he put forward in the briefing filed in support of the application of equitable tolling to his second Rule 32 petition. (Doc. 19). That petition was filed in June 2014, over three years beyond Petitioner's § 2254 limitations period, but details alleged attorney misconduct in 2011-2012. The state court rejected Petitioner's arguments, and denied Petitioner's second Rule 32 petition as untimely.

         Now, years later, in his § 2254 proceeding, it appears Petitioner wishes to raise an equitable tolling argument and to rely on the arguments presented in the briefing in his second Rule 32 proceeding. (Doc. 12-14 at 19-59).[2] The Court has reviewed the briefing cited by Petitioner. The adopted arguments Petitioner makes in favor of equitable tolling of the § 2254 limitations period are, in sum, that he encountered difficulty obtaining legal counsel to assist him in filing his Rule 32 petition, and that he had to file his Rule 32 petition pro se.

         A. Petitioner Has Not Established Extraordinary Circumstances

         The Eleventh Circuit has stated:

Section 2244 is a statute of limitations, not a jurisdictional bar. Therefore, it permits equitable tolling “when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269[, 1271 (11th Cir. 1999)]. Equitable tolling is an extraordinary remedy which is typically applied sparingly. See Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990).

Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). The Eleventh Circuit has also held:

[M]ere attorney negligence is not a basis for equitable tolling. Helton v. Sec'y for Dep't of Corr., 259 F.3d 1310, 1313 (11thCir. 2001); Steed v. Head, 219 F.3d 1298, 1300 (11thCir. 2000); Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th Cir. 1999). Moreover, even if a prisoner shows that extraordinary circumstances” occurred, the prisoner must still establish that he acted with due diligence in order to be entitled to equitable tolling. See Helton, 259 F.3d at 1313.

Powe v. Culliver, 205 F. App'x. 729, 732 (11th Cir. 2006). As a general rule, “the ‘extraordinary circumstances' standard applied in this circuit focuses on the circumstances surrounding the late filing of the federal habeas petition, rather than the circumstances surrounding the underlying conviction.” Helton v. Secretary of Dept. of Corrections, 259 F.3d 1310, 1314 (11th Cir. 2001), cert. denied, 535 U.S. 1080 (2002); Drew v. Department of Corrections, 297 F.3d 1278, 1286-87 (11th Cir. 2002).

         The instant § 2254 petition was filed five years beyond the statute of limitations. All of Petitioner's arguments in favor of equitable tolling relate to the late filing of his second Rule 32 petition, which was first filed three years beyond the § 2254 limitations period. “While a properly filed application for post-conviction relief tolls the statute of limitations, it does not reset or restart the statute of limitations once the limitations period has expired. In other words, the tolling provision does not operate to revive the one-year limitations period if such period has expired.” Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003)(internal quotations omitted). When Petitioner's limitations period began after the conclusion of statutory tolling related to his first Rule 32 petition, only 28 days of the limitation period remained. Thus, the relevant time period in which the existence of extraordinary circumstances is to be evaluated is from March 24, 2011 to April 20, 2011. Petitioner's “adopted” arguments include a time line of event spanning from September 8, 2009 to June 25, 2012 in which Petitioner explains difficulties faced obtaining counsel to represent him in the appeal of the denial his first Rule 32 petition. (Doc. 12-19 at 35-37).

         To the extent that Petitioner contends that his attorneys were negligent in the efforts to represent him or that they failed to represent him, “attorney negligence, however gross or egregious, does not qualify as an ‘extraordinary circumstance' for purposes of equitable tolling.” Cadet v. Fla. Dep't of Corr.,742 F.3d 473, 481 (11th Cir. 2014)(internal citation omitted). The Eleventh Circuit has stated that “pro se litigants, like all others, are deemed to know of the one-year statute of limitations.” Outler v. United States, 485 F.3d 1273, 1282 n. 4 (11th Cir.2007) (concerning the one-year limitation period for motions by federal prisoners under 28 U.S.C. § 2255). And we have not accepted a lack of a legal education as an excuse for a failure to file in a timely fashion. See Rivers v. United States, 416 F.3d 1319, 1323 (11th Cir.2005) ...


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