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Coulter v. Kelley

United States District Court, W.D. Arkansas, El Dorado Division

March 31, 2015

ROGER LEWIS COULTER, Petitioner,
v.
WENDY KELLEY, Director Arkansas Department of Corrections[1], Respondent.

MEMORANDUM OPINION

SUSAN O. HICKEY, District Judge.

Petitioner, Roger Lewis Coulter, sentenced to death for capital murder and confined at the Maximum Security Unit of the Arkansas Department of Correction ("ADC"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). In response, Respondent, Wendy Kelley, has asserted multiple procedural defenses and time bars to Petitioner's claims. The Court held an evidentiary hearing on these issues in April 2013 ("Habeas Hearing"). After thorough consideration of the arguments and evidence presented at the Habeas Hearing and the parties' pre-and post-hearing briefing, the Court issues this Memorandum Opinion.

FACTUAL AND PROCEDURAL BACKGROUND

In 1989, Petitioner was convicted, in the Circuit Court of Ashley County, Arkansas, of the rape and capital murder of five-year-old Natasha Phelps and was sentenced to death by lethal injection. On appeal from the post-conviction proceedings, the Arkansas Supreme Court summarized the facts surrounding the rape and murder as follows:

The record reflects that [Petitioner] was living with the child victim and her mother in Warren, Arkansas. On the morning of April 12, 1989, [Petitioner] left home with the child and was supposed to take her to the local Headstart center, which he did from time to time. According to the child's mother, [Petitioner] returned home that morning somewhat later than normal, wearing dirty clothes and claiming that he had experienced car trouble. After eating breakfast and bathing, [Petitioner] drove to his mother's house to borrow some money. [Petitioner] was later seen cashing a check from his mother at a local bank. [Petitioner] did not return the child home that afternoon. Her mother and grandmother eventually went to the Headstart center to pick up the child. There, they were informed that the child had not been dropped off that day.
The victim's family filed a missing-person report with the local police, and a search for the child was undertaken. Police officers found the child's body the following day, in a wooded area where witnesses had seen [Petitioner] in his car the day before. The child's partially clothed body was found stuffed inside a hollow tree, covered by some branches and leaves. Testimony from the state's chief medical examiner established that the child had been raped and ultimately died of smothering and strangulation. [Petitioner] was eventually arrested in California, some five weeks after the murder.

Coulter v. State, 343 Ark. 22, 26, 31 S.W.3d 826, 828 (Ark. 2000).

In 1991, the Arkansas Supreme Court ("ARSC") affirmed Petitioner's conviction, and the United States Supreme Court denied certiorari later that same year. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (Ark. 1991), cert. denied sub nom Coulter v. Arkansas, 502 U.S. 829 (1991). Petitioner then sought post-conviction relief in the circuit court of Ashley County. In October of 1999, the circuit court denied all relief, and in November of 2000, the ARSC affirmed. Coulter v. State, 343 Ark. at 35. On October 1, 2001, Petitioner filed his original Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. (Pet'r's Pet. for Writ of Habeas Corpus, October 1, 2001, ECF No. 3). On September 16, 2003, Petitioner filed a First Amended Petition. (Pet'r's Am. Pet. for Writ of Habeas Corpus, September 16, 2003, ECF No. 25). In this First Amended Petition, Petitioner asserted multiple claims including a claim that he is mentally retarded pursuant to Atkins v. Virginia, 536 U.S. 304 (2002) (" Atkins Claim"). By Order dated May 24, 2004, the Court dismissed Petitioner's Atkins Claim, in order for Petitioner to return to state court and exhaust that claim. This Order also stayed Petitioner's remaining claims pending his return from state court.[2] (Order, May 24, 2004, ECF No. 27). On January 3, 2007, Petitioner filed a Motion to Lift Stay and Second Amended Petition (Pet'r's Am. Pet. for Writ of Habeas Corpus by a Person in State Custody, January 3, 2007, ECF No. 44).

In his Second Amended Petition, Petitioner made thirteen claims for relief: (1) Petitioner's "death sentence must be vacated because the prosecutor's closing argument violated his constitutional rights under Caldwell v. Mississippi, 472 U.S. 320 (1985);" (2) "trial counsel rendered constitutionally ineffective assistance at the penalty phase;" (3) the sentence of death "is predicated upon a single invalid aggravating circumstance;" (4) "the trial court violated [Petitioner's] constitutional rights by removing potential jurors for cause based on their views of the death penalty even though the jurors could be substantially fair and impartial;" (5) "the sentencing provisions of Arkansas' capital murder statutes violate the constitution;" (6) Petitioner "is entitled to relief from his death sentence under the Eighth and Fourteenth Amendments because he suffers from mental retardation;" (7) "the trial court unconstitutionally denied [Petitioner] funds to retain an expert to assist in his defense at both the guilt and penalty phases of his trial;" (8) "trial counsel labored under an insurmountable conflict of interest that adversely affected his performance in violation of [Petitioner's] constitutional rights;" (9) Petitioner's "constitutional rights to a fair trial were violated by the trial judge's failure to discharge his duty to protect [Petitioner's] right to the effective assistance of counsel at the penalty phase;" (10) "trial counsel rendered constitutionally ineffective assistance at the guilt phase;" (11) "the judge unconstitutionally instructed the jury in the guilty phase that, if it did not convict [Petitioner] of capital murder, his crime might be punished with only a fine;" (12) "errors and omissions by appellate and state post-conviction counsel deprived [Petitioner] of his constitutional rights to effective assistance on appeal and on state collateral review;" and (13) "the Court should conduct a cumulative assessment of whether constitutional errors occurred and whether such errors were prejudicial." (Am. Pet., ECF No. 44).

Respondent initially filed a Response to the Second Amended Petition on May 1, 2007. (Resp. to Second Am. Pet. for Writ of Habeas Corpus, May 1, 2007, ECF No. 50). The parties then proceeded to litigate the issues raised in the Second Amended Complaint and original Response over the course of the next two years.[3]

On September 11, 2009, the Court issued an Order establishing a briefing schedule for the parties to specifically address all statute of limitations arguments and procedural defenses in this matter ("Briefing Order"). (Order, September 11, 2009, ECF No. 94). On October 26, 2009, in Response to the Briefing Order, Respondent submitted a document titled "First Amended Response to Petitioner's Second Amended Petition for Writ of Habeas Corpus" ("Amended Response"). (ECF No. 98). In the Amended Response, Respondent not only clarified the procedural defenses and statute of limitations assertions made in the original Response, but also included additional arguments, including an assertion that Petitioner's original habeas Petition was untimely filed pursuant to the AEDPA.[4] (Amended Response, ECF No. 98). On January 25, 2010, in response to the Amended Response, Petitioner filed a document titled "Reply to Respondent's Briefing Regarding the Statute of Limitations and Procedural Default." ("Petitioner's Reply"). (ECF No. 105).

DISCUSSION

As explained fully below, the Court finds that Petitioner's original Petition is time barred pursuant to the AEDPA, and this habeas matter should be dismissed with prejudice. The Court arrives at this conclusion by first addressing the initial matter of whether Respondent's limitations argument is properly before the Court. Once it is established that the limitations argument should be considered, the Court will analyze whether Petitioner filed his Petition outside of the AEDPA one-year statute of limitations. Next, the Court will address whether Petitioner is entitled to equitable tolling. Finally, the Court will address Petitioner's miscarriage of justice arguments against the time bar.[5]

I. Arguments Properly Before the Court

Respondent first argues that Petitioner's original Petition is time barred, therefore, the Court need not consider any claims made by Petitioner and the Second Amended Petition should be dismissed. Respondent asserted this argument for the first time in his Amended Response. (Resp't's First Am. Resp., 15-20, ECF No. 98). Before addressing the merits of this statute of limitations argument, the Court must first address Petitioner's assertion that this argument is not properly before the Court.

A. Waiver of Limitations Argument

Petitioner argues Respondent waived this particular statute-of-limitations argument by failing to assert it in his Response to the original Petition. Further, Petitioner argues Respondent conceded, in his initial Response to the Second Amended Petition, that the original Petition was timely filed. Respondent filed his Amended Response to the Second Amended Petition on October 26, 2009. In this Amended Response, Respondent explained that he interpreted the Court's September 11, 2009 Briefing Order to grant him leave to amend his Response or, in the alternative, he requested that the Court grant him leave to so amend.

In support of his waiver argument, Petitioner relies on Day v. McDonough, 547 U.S. 198 (2006). The issue in Day, however, is distinguishable from the issue presented here. In Day the Court considered whether a habeas court may, sua sponte, dismiss a prisoner's petition for writ of habeas corpus as untimely. Id. at 202. The Day Court explained that habeas courts are "permitted, but not obliged, to consider sua sponte the timeliness of a state prisoner's habeas petition." Id. at 209. Further, under the Federal Rules of Civil Procedure, a statute of limitations argument not raised in the answer or response or an amendment thereto is forfeited. Id. at 202 (citing Fed.R.Civ.P. 8(c), 12(b), and 15(a)).

Here, the Court is not attempting to raise the statute of limitations argument sua sponte as the habeas court did in Day. Respondent did not waive his limitations argument, instead, he is attempting to assert it through an amended response just as the Day Court explained was an acceptable method. See Day, 547 U.S. at 209 (explaining that it would have been acceptable for the habeas court to inform the state of their calculation error and entertain an amended response to the petition). Therefore, in accordance with Day, the Court will entertain Respondent's Motion to Amend his Response to Petitioner's Second Amended Petition filed within his Amended Response.[6]

B. Respondent's Motion to Amend

Respondent first asserts the Court's Briefing Order granted him leave to amend his Response to the Second Amended Petition. As an alternative, Respondent included a Motion to Amend in his Amended Response.

After this matter returned to this Court from state court in January 2007, the Court granted Petitioner leave to file a Second Amended Petition setting forth thirteen claims for relief-his five original claims along with eight new claims. (Order, February 5, 2007, ECF No. 47). Respondent filed his original Response to the Second Amended Petition on May 1, 2007 arguing multiple statute-of-limitations arguments but not asserting that Petitioner's original Petition was untimely filed. (Resp. to Second Am. Pet., May 1, 2007, ECF No. 50). Over the course of the next two years the parties litigated the claims raised by Petitioner in his Second Amended Petition and the procedural defenses and limitations arguments raised in Respondent's original Response. Finally, on September 11, 2009, the Court issued the Briefing Order establishing a briefing schedule for the parties to specifically address all statute of limitations arguments and procedural defenses. (Order, September 11, 2009, ECF No. 94).

In the Court's September 11, 2009, Order the Court specifically stated:

Respondent is hereby ORDERED to submit briefing to specifically clarify, as to each of Petitioner's thirteen claims, where Respondent finds the statute of limitations has run, and why; as well as specifically clarify where procedural default, including the failure [to] exhaust claims, has occurred, and why.

(Order, September 11, 2009, ECF No. 94) (emphasis in original). This Order does not expressly grant leave for Respondent to amend his Response, however, Respondent's interpretation is not baseless as the Court did request more information and clarification on Respondent's procedural defenses and limitations arguments asserted in the original Response. Nonetheless, rather than simply accepting Respondent's Amended Response, the Court will consider Respondent's Motion to Amend filed within his Amended Response. (Resp't's First Am. Resp., 2, ECF No. 98).

Respondent moves to Amend his Response pursuant to Federal Rule of Civil Procedure 15(a)(2). Rule 15(a) provides in pertinent part:

(1) Amending as a Matter of Course . A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Fed. R. Civ. P. 15(a).

Although leave to amend is to be freely granted under Rule 15(a), the Court has discretion whether or not to grant leave to amend. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-32 (1971). Factors to consider in determining whether leave to amend should be granted include but are not limited to (1) whether the motion was filed in bad faith or with dilatory motive; (2) whether the motion was filed with undue delay; (3) whether leave to amend would be unduly prejudicial to the opposing parties; and (4) whether the proposed amendment would be futile. See Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

Even though over two years transpired between Respondent's original Response to the Second Amended Petition and his Motion to Amend, the Court finds Respondent's Motion was not filed in bad faith, with dilatory motive, or with undue delay. First, the parties were actively litigating the issues of procedural defenses and limitations arguments during this two-year time period. Second, Respondent filed the Motion to Amend and Amended Response in response to a Court order requesting clarification on limitations arguments and procedural defenses. Lastly, delay alone is not sufficient justification for denial of a motion to amend. See Moore-El v. Luebbers, 446 F.3d 890, 902 (8th Cir. 2006) (citing Bell v. Allstate, 160 F.3d at 454) (Moore-El's purported amendments to his habeas claims were denied based on the futility of the claims not on the delay in asserting the amendments).

Further, allowing Respondent to Amend his Response will not unduly prejudice Petitioner. Petitioner has been afforded the opportunity to provide the Court with arguments on the newly asserted limitations issues in two rounds of briefing (both before and after the evidentiary hearing) and the opportunity to present evidence regarding these issues at the evidentiary hearing. The Court has all the information it needs to make a ruling on Respondent's new limitations argument. Therefore, Petitioner will not be prejudiced by any further delay if Respondent's Motion to Amend is granted.

Petitioner also argues that allowing Respondent to raise such a claim this late in the litigation prejudices Petitioner because he could have spent his resources seeking other forms of relief if the Petition was initially dismissed as untimely. The Court is unconvinced by this cursory argument as there was no evidence cited supporting this assertion.

Additionally, allowing Respondent's proposed amendments will not be futile. In his Amended Response, Respondent urges statute-of-limitations arguments that if not included in his Response will be waived. See Day, 547 U.S. at 209. Further, as explained in detail below, the statute of limitations argument is meritorious.

Lastly, the Court notes, that in the interest of justice, it has freely granted amendments for the Petitioner in this matter on multiple occasions over the course of this litigation. Petitioner has not presented any reason why Respondent should not enjoy the same consideration and application in the interest of justice.[7]

Accordingly, the Court GRANTS Respondent's Motion to Amend his Response to Petitioner's Second Amended Petitioner (ECF No. 98) and considers the document filed at ECF No. 98 to be Respondent's Amended Response to Petitioner's Second Amended Petition. Because leave to amend has been granted, all of Respondent's statute-of-limitations arguments raised in his Amended Response are properly before the Court at this time.

II. Timeliness of the Original Petition

Having found that Respondent's AEDPA statute of limitations argument is properly before the Court, the Court will now proceed to the merits of this argument and Petitioner's responses. Respondent alleges that Petitioner's original Petition was not filed within the one-year limitations period prescribed by the AEDPA, specifically 28 U.S.C. § 2244(d)(1). Therefore, according to Respondent, Petitioner's original and all subsequent habeas petitions are time barred and should be dismissed with prejudice. Petitioner argues that his original Petition was timely filed.

A. AEDPA Applicable Law

On April 24, 1996, the AEDPA was signed into law. This law amended the federal habeas corpus statutes in many ways, most pertinently by including the addition of a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The AEDPA provides four distinct triggering points for the one-year limitations period. Section 2244(d)(1)(A) specifies that the limitations period shall run from the date a judgment becomes final by the conclusion of direct review or the expiration of the time for seeking such review. Section 2244(d)(1)(B) specifies that the limitations period shall run from the date an impediment to filing created by the State is removed. Section 2244(d)(1)(C) specifies that the limitations period shall run from the date a constitutional right has been initially recognized by the United States Supreme Court and made retroactively applicable to cases on collateral review. Section 2244(d)(1)(D) specifies that the limitations period shall run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."

Here the applicable section is 2244(d)(1)(A), however, as in this case where the judgment became final prior to the enactment of the AEDPA, the limitations period begins to run on April 24, 1996, the day the AEDPA was enacted. See e.g., Baker v. Norris, 321 F.3d 769, 771 (8th Cir. 2003). Section 2244(d)(2) also provides that the time during which a "properly filed application" for state post-conviction or other collateral review with respect to the pertinent judgment or claim is "pending" shall not be counted toward any period of limitations. 28 U.S.C. § 2244(d)(2).

B. Statute-of-Limitations Facts

Petitioner's conviction was final on October 7, 1991 when the United States Supreme Court denied certiorari. See Coulter v. Arkansas, 112 S.Ct. 102 (1991). See also Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) ("[T]he finality of a state-court judgment is expressly defined by statute as the conclusion of direct review or the expiration of the time for seeking such review.'") (quoting 28 U.S.C. § 2244(d)(1)(A)). On April 24, 1996, the day the AEDPA was enacted, Petitioner's post-conviction proceedings were pending in Ashley County Circuit Court. (Rule 37 Proceeding R. vols. 1-2, ECF No. 9, Exs. H-1, H-2). The state post-conviction action was dismissed on October 8, 1999, and Petitioner filed a notice of appeal on January 27, 2000. On February 22, 2000, Petitioner filed a Motion for Belated Appeal with the ARSC. The ARSC granted this Motion on March 30, 2000. See Coulter v. State, 340 Ark. 717, 13 S.W.3d 171 (Ark. 2000). The ARSC affirmed the denial of Petitioner's post-conviction relief in an opinion dated November 30, 2000 and issued a mandate as to such on December 19, 2000. See Coulter v. State, 343 Ark. 22 (2000). Petitioner filed his original Petition for Writ of Habeas Corpus in this Court on October 1, 2001. (Pet., ECF No. 3).

Because Petitioner's conviction became final prior to the enactment of the AEDPA his limitations period did not begin to run until April 24, 1996, the date the AEDPA was enacted. See Baker, 321 F.3d at 771. Further, because Petitioner's state post-conviction proceedings were pending in Ashley County Circuit Court on April 24, 1996, his limitations period was tolled until his post-conviction proceedings were no longer pending. 28 U.S.C. § 2244(d)(2); see also Walker v. Norris, 436 F.3d 1026, 1030 (8th Cir. 2006) (explaining that pursuant to section 2244(d)(2), the AEDPA limitations period is tolled during a "properly filed" application for State post-conviction relief). The Court must now determine when Petitioner's post-conviction proceedings were no longer pending.

C. Parties' Statute-of-Limitations Arguments

Respondent argues that Petitioner's post-conviction proceedings ceased pending on October 8, 1999 when the Ashley County Circuit Court dismissed his post-conviction motion for relief. Further, Respondent argues Petitioner's post-conviction proceedings did not resume pending until the Supreme Court of Arkansas granted Petitioner permission to pursue a belated appeal of the denial of post-conviction relief on March 30, 2000. Therefore, according to Respondent, the limitations period was not tolled from October 8, 1999 to March 30, 2000-a time period of over five months. Respondent concedes that Petitioner's limitations period was tolled from March 30, 2000 (when the ARSC granted him permission to pursue a belated appeal) until December 19, 2000 (when the ARSC issued its mandate affirming the denial of State post-conviction relief). Respondent argues that the limitations period began running again on December 19, 2000, and that a time period of approximately nine months elapsed before Petitioner filed his original Petition in this court on October 1, 2001. Therefore, according to Respondent's calculations, Petitioner's limitations period ran for a total of fourteen (14) months-two months outside the one-year AEDPA statute of limitations-prior to October 1, 2001 when the original Petition was filed.

Petitioner argues that his original Petition is timely because his post-conviction proceedings did not cease "pending, " for purposes of section 2244(d)(2), between the October 8, 1999 denial of post-conviction relief and the March 30, 2000 grant to pursue a belated appeal. In the alternative, Petitioner argues that his limitations period did not begin to run until November 8, 1999 (the deadline for appealing the dismissal of his post-conviction proceedings) and was then tolled again on February 27, 2000[8] (the day Petitioner filed his Motion for Belated Appeal). Therefore, according to Petitioner's calculations, in his alternative argument, only eighty (80) days elapsed prior to the ARSC issuing its mandate on December 19, 2000.

D. Analysis

As stated above, section 2244(d)(2) tolls the AEDPA limitations period in certain instances. Specifically, section 2244(d)(2) reads in pertinent part:

The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(2). Therefore, the Court must determine at what times from April 24, 1996 to October 1, 2001 Petitioner's post-conviction proceedings were pending.

In Carey v. Saffold, 536 U.S. 214 (2002), the Supreme Court determined that an application is "pending, " as the term is used in section 2244(d)(2), "until the application has achieved final resolution through the State's post-conviction procedures...." Id. at 220. Further, the Supreme Court has recognized that a State's post-conviction procedure is complete once the State's highest court issues a mandate on the proceedings or denies review. See Lawrence v. Florida, 549 U.S. 327, 332 (2007). The Eighth Circuit Court of Appeals ("Eighth Circuit"), in applying Carey, held that an application for state post-conviction review remains "pending" during the time in which an appeal of the denial of the application may be filed, even if the appeal is not actually filed. See Williams v. Bruton, 299 F.3d 981, 983 (8th Cir. 2002). The Eighth Circuit reasoned that the application does not reach "final resolution" until the time for appeal has expired. Id.

However, the Eighth Circuit does not consider an application for post-conviction relief as "pending' between the expiration of the time for appeal and the filing of a petition for belated appeal." Streu v. Dormire, 557 F.3d 960, 966-67 (8th Cir. 2009). In Streu, the Eighth Circuit agreed with several other circuits that the grant of a motion for belated appeal in state court did not retroactively toll a petitioner's section 2244(d)(2) limitations period. See Streu, 557 F.3d at 966-967 (citing McMillan v. Sec'y for Dep't of Corr., 257 Fed.Appx. 249, 252 (11th Cir. 2007) (per curiam); Allen v. Mitchell, 276 F.3d 183, 186 (4th Cir. 2001); Melancon v. Kaylo, 259 F.3d 401, 407 (5th Cir. 2001); Gibson v. Klinger, 232 F.3d 799, 807 (10th Cir. 2000); Fernandez v. Sternes, 227 F.3d 977, 979 (7th Cir. 2000)).

The facts of Streu are analogous to the facts presented here. After properly seeking one round of state post-conviction relief, [9] Streu attempted a second application for post-conviction relief by filing a motion to reopen his state post-conviction proceedings on September 12, 2005. This motion was denied by the trial court, but Streu was not notified of this denial thereby causing him to miss his deadline for appealing the denial to reopen state post-conviction proceedings. After realizing what occurred, on March 3, 2006, Streu filed a motion for leave to file an appeal out of time with the state court of appeals. On March 14, 2006, Streu's motion for leave was granted, and on March 31, 2006, Streu properly filed his appeal of the denial to reopen post-conviction proceedings. See Streu, 557 F.3d at 962-63.

The Eighth Circuit conducted a thorough analysis of when precisely a motion to appeal was "pending" for purposes of 2244(d)(2). Id. at 965-66. Applying the reasoning announced in Carey and Williams, the Eighth Circuit found Streu's proceedings were "pending" between March 14, 2006 (the date his motion for leave to file an untimely appeal was granted) and January 24, 2007 (the date the court of appeals issued its mandate affirming the denial of his motion to reopen). Streu, 557 F.3d at 966. The Streu court reasoned that once the deadline for filing a notice of appeal passed without any action by Streu, there was nothing "in continuance" or "not yet decided" and the post-conviction proceedings had reached a resolution. Streu, 557 F.3d at 966 (quoting Saffold, 536 U.S. at 219.). Further, the Streu Court held there was nothing "pending" after Streu failed to file his appeal until he filed his motion for leave to proceed out of time. Id. at 967. The Streu court concluded that the AEDPA's limitations period was not tolled between the time Streu's deadline to appeal expired and the filing of his motion for leave to file appeal out of time. Id. at 967.

Accordingly, pursuant to Streu, the Court finds Petitioner's post-conviction proceedings ceased pending when his time to appeal expired on November 8, 1999[10] and was not again pending until he filed his motion for belated appeal on February 22, 2000.[11] Id. at 967.

Petitioner argues that the state court of appeals, in granting his belated appeal, "reset" his AEDPA limitations period. Petitioner relies on Jimenez v. Quarterman, 555 U.S. 113 (2009) in support of this argument.

In Jimenez, the Supreme Court issued a narrow holding that "where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet final' for purposes of § 2244(d)(1)(A)." Jimenez, 555 U.S. at 686 (emphasis added). The Jimenez Court specifically stated: "[t]he only disputed question before us is... the date on which direct review became "final" under the statue [28 U.S.C. § 2244(d)(1)(A)]." Id. at 119. The date on which direct review became final is not the issue presented here. In this case, it is undisputed that Petitioner's conviction became final at the conclusion of direct review on October 7, 1991 when the Supreme Court denied certiorari. Further, when a conviction becomes final pursuant to section 2244(d)(1)(A) is a distinct issue from when an application for post-conviction review is "pending" pursuant to section 2244(d)(2). See Streu, 557 F.3d at 967 n. 2. Moreover, the Eighth Circuit specifically noted that Jimenez does not suggest "that once a motion for leave to file an untimely appeal is granted, an application for State post-conviction or other collateral review' should be deemed pending' from the time the motion for leave was filed until the belated appeal is resolved." Streu, 557 F.3d at 967 n. 2. In Streu, the Eighth Circuit goes on to explain that the Jimenez Court implied that "the appeal was not pending' during the period after the time for appeal had expired, but before leave to file an appeal out of time was granted." Id. Accordingly, the law does not support Petitioner's argument that granting his motion for belated appeal "reset" his one-year AEDPA limitations period.

As explained above, the law supports Petitioner's alternative argument that his post-conviction proceedings were pending until the time expired for him to appeal the denial of his post-conviction proceedings and began pending again once he filed his motion for belated appeal. However, the dates and time calculations offered by Petitioner are incorrect, and even applying Petitioner's alternative calculations, the original Petition was filed outside the AEDPA one-year limitations period.

First, Petitioner asserts his time period began to run on November 8, 1999 (his deadline for appeal of the dismissal of his post-conviction proceedings expired). The limitations period, however, did not begin accruing until November 9, 1999 pursuant to Federal Rule of Civil Procedure 6(a)(1)(A) which excludes from the time computation the day of the event triggering the time period. See Moore v. United States, 173 F.3d 1131, 1133-35 (8th Cir. 1999) (applying Federal Rule of Civil Procedure 6(a) to AEDPA statutes of limitations).

Next, Petitioner claims that his limitations period was tolled again on February 27, 2000, the day Petitioner filed his Motion for Belated Appeal. However, Petitioner filed his Motion for Belated Appeal on February 22, 2000 not February 27, 2000. (Am. Resp., ECF No. 98, Ex. J).

Finally, Petitioner argues only eighty (80) days elapsed while his post-conviction proceedings were not pending (according to Petitioner, from November 8, 1999 to February 27, 2000). This computation excluded intermediate Saturdays, Sundays, and legal holidays. The 1999 version of Rule 6 provided for the exclusion of intermediate Saturdays, Sundays, and legal holidays "[w]hen the period of time prescribed or allowed is less than 11 days...." See Lomax v. Armontrout, 923 F.2d 574, 575 (8th Cir. 1991). This exclusion did not apply, however, to time periods over eleven (11) days. See Valley Engineers Inc. v. Electric Engineering Co., 158 F.3d 1051, 1058-9 (9th Cir. 1998) (holding, pursuant to Rule 6, intermediate weekend days were not excluded from periods over 10 days). Because the AEDPA limitations period is one year, intermediate Saturdays, Sundays, and legal holidays should be included when calculating the filing deadline. See Fed.R.Civ.P. 6; Moore, 173 F.3d at 1133-35.

For the reasons stated above, the Court finds Petitioner's one-year AEDPA limitations period began to run on November 9, 1999, the day after his deadline to appeal expired, and was not tolled again until February 22, 2000 when Petitioner filed his Motion for Belated Appeal. S ee Streu, 557 F.3d at 966; Williams, 299 F.3d at 983. During this time period 106 days of Petitioner's limitations period elapsed. Petitioner's limitations period began running again on December 20, 2000, the day after the ARSC issued its mandate affirming the denial of Petitioner's post-conviction relief. See Lawrence, 549 U.S. at 332. Petitioner filed his original Petition for Writ of Habeas Corpus in this Court on October 1, 2001. (Pet., ECF No. 3). During this time period 286 days elapsed. Therefore, a total of 392 days elapsed, save for the tolled periods, from April 24, 1996 (the time Petitioner's AEDPA's one-year statute-of-limitations period began to run) and October 1, 2001 (the filing date of Petitioner's original Petition). Accordingly, the Court finds Petitioner filed his original Petition twenty-seven (27) days outside his AEDPA one-year limitations period.

III. Equitable Tolling

Because the Court finds Petitioner's original Petition was untimely filed, it must now address Petitioner's alternative argument that he is entitled to equitable tolling. Petitioner makes three distinct arguments for equitable tolling of his AEDPA limitations period: (1) the State erred in mailing the notice of judgment in his post-conviction proceedings; (2) his attorney abandoned him; and (3) his mental illness prevented him from protecting himself against the limitations period.[12]

A. Equitable Tolling Applicable Law

The Eighth Circuit and the United States Supreme Court recognize that section 2244(d) is subject to equitable tolling in appropriate instances. See Holland v. Florida, 560 U.S. 631 (2010); see also Jihad v. Hvass, 267 F.3d 803 (8th Cir. 2001). Equitable tolling should only be afforded, however, if the petitioner can show: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). See also Earl v. Fabian, 556 F.3d 717 (8th Cir. 2009).

In Holland, the Supreme Court directed courts to rely upon the precedent set by similarly situated cases but cautioned against a "hard and fast adherence" to absolute legal rules in cases where such application may result in unnecessary rigidity. Holland, 560 U.S. at 650 (internal quotations omitted). Specifically, the Holland Court noted:

[C]ourts of equity can and do draw upon decisions made in other similar cases for guidance. Such courts exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in ...

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