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Allen v. Tatum

United States District Court, S.D. Georgia, Savannah Division

September 4, 2014

JOSEPH E. ALLEN, Petitioner,
CLAY TATUM, Respondent.


G. R. SMITH, Magistrate Judge.

Joseph E. Allen challenges his state court conviction under 28 U.S.C. § 2254. Doc. 1. On its face, it appears to be time-barred by 28 U.S.C. § 2244(d)(1)'s one-year limitations period. Upon preliminary review under Rule 4 of the Rules Governing Proceedings under 28 U.S.C. § 2254, the Court is inclined to recommend dismissal but will grant him a second-chance pleading opportunity.


In 2001 a jury convicted him of, inter alia, kidnapping and armed robbery, resulting in life imprisonment. Doc. 1 at 1-3. He appealed and his conviction was affirmed, but he did win resentencing. Allen v. State, 268 Ga.App. 519, 533-34 (2004). He does not say what became of the resentencing, but discloses that since 2004 he sought state habeas relief. Allen fails to say when he sought that relief, [1] only that it was denied on July 15, 2010. Doe. 1 at 4. However, he cites no further litigation since 2010, and he concedes that his § 2254 petition is untimely.[2] Indeed, he moves for leave to file it out of time. Id. at 8-9.


A. Timeliness

Allen had one year from the date of his conviction to file his § 2254 petition, but that clock was stopped so long as he had pending a properly filed state appeal or application for collateral review. 28 U.S.C. § 2244(d)(2); Rich v. Sec'y for Dept of Corr., 512 F.Appx. 981, 982-83 (11th cir. 2013); Nesbitt v. Danforth, 2014 WL 61236 at * 1 (S.D. Ga. Jan. 7, 2014) ("28 U.S.C. § 2244(d)(1)'s one-year clock ticks so long as the petitioner does not have a direct appeal or collateral proceeding in play."). "An application is properly filed when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Rich, 512 F.Appx. at 983 (quotes and cite omitted); Everett v. Barrow, 861 F.Supp.2d 1373, 1375 (S.D. Ga. 2012).

Hence, if Allen sat on any claim or created any time gaps in the review process, the one-year clock would continue to tick. Kearse v. Secretary, Fla. Dept. of Corrs., 736 F.3d 1359, 1362 (11th Cir. 2013); Nesbitt, 2014 WL 61236 at *1. In that regard, "[a]n application that is untimely under state law is not properly filed' for purposes of tolling AEDPA's limitations period." Gorby v. McNeil, 530 F.3d 1363, 1367 (11th Cir. 2008) (cite omitted); Dixon v. Hart, 2013 WL 2385197 at * 3 (S.D. Ga. May 21, 2013). And once the one-year clock runs out, it cannot be restarted or reversed merely by filing a new state court or federal action. Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (a state postconviction motion filed after expiration of the limitations period cannot toll the period, because there is no period remaining to be tolled); Nesbitt, 2014 WL 61236 at *1; Frye v. Williams, 2014 WL 1668127 at * 1 (S.D. Ga. Apr. 25, 2014). Allen sat on his claims for more than one year - if not after his 2004 appellate affirmance and presumed resentencing, then certainly from the state habeas court's 2010 disposition. In fact, he concedes this. Doc. 1 at 8.

B. Equitable Tolling

Liberally construed (he proceeds here pro se ), Allen's § 2254 petition pleads the equitable tolling exception.[3] He cites his legal ignorance and "mental disabilities." Doc. 1 at 8. He claims he "is suffering from mental disabilities which ha[ve] precluded and interfered with his progress to intelligently pursue challenging his convictions.

Petitioner has been diagnosed suicidal, hearing voices, and anti-social disorders." Id.

The equitable tolling requirements are not easily met. See, e.g., DeLeon v. Fla. Dep't of Corrs., 470 F.Appx. 732, 734 (11th Cir. 2012) (neither inability to understand English nor lack of legal education, absence of legal counsel in collateral context, and resulting consequences of reliance upon a bilingual inmate law clerk constituted extraordinary circumstances justifying equitable tolling of one-year limitations period for federal habeas corpus petition). A § 2254 petitioner claiming a mental impairment must "establish a causal connection between his alleged mental incapacity and his ability to file a timely petition." Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005) (Lawrence I) ; see also id. at 1226-27 (habeas petitioners mental impairments were not an extraordinary circumstance that would toll limitations period, absent showing of causal connection between such impairments and his ability to file timely petition; petitioner had IQ of 81, and did not claim mental incompetence per se ), aff'd, 549 U.S. 327 , 337 (2007) (Lawrenc II) ("Lawrence has made no factual showing of mental incapacity."). Lawrence I applies a pleading and proof burden, [4] and it cited cases holding that a mere conclusional allegation of mental incapacity will not suffice. Fisher v. Gibson, 262 F.3d 1135, 1145 (10th Cir. 2001) (petitioner's mere allegations of incompetency at the time of his guilty pleas did not suffice to warrant equitable tolling of the limitations period); Collins v. Scurr, 230 F.3d 1362 (8th Cir. 2000) (Table) (bald and unsupported assertions that relate to an instance of alleged mental incompetency that occurred at a time remote to petitioner's habeas petition filing deadline did not equitably toll the statute of limitations), and Fisher v. Johnson, 174 F.3d 710, 716 (5th Cir. 1999) (equitable tolling did not apply when petitioner's brief period of incapacity "occurred at a time so remote to his deadline" and petitioner could not show that he diligently pursued his application the remainder of the one-year filing deadline). Lawrence I, 421 F.3d at 1227; see also Bills v. Clark, 2014 WL 2750008 at * 1 (9th Cir. June 18, 2014) (petitioners must show that, despite any diligence, a claimed "mental impairment made it impossible to meet the filing deadline under the totality of the circumstances. Stated another way, to be eligible for equitable tolling, the otherwise diligent petitioner's mental impairment must be the cause-in-fact of any delay.") (cite omitted); Andel v. Valenzuela, 2014 WL 3854406 at * 6 (C.D. Cal. Aug. 4, 2014) (applying "Bills test" to deny equitable tolling to petitioner claiming mental impairment; "the record reflects that petitioner's mental illness has not made it impossible for him to file a petition.[5]

On other habeas claims the Eleventh Circuit has applied the heightened pleading standard. Chavez v. Sec'y Fla. Dep't of Corrs., 647 F.3d 1057, 1061 (11th Cir. 2011) ("The allegations must be factual and specific, not conclusory. Conclusory allegations are simply not enough to warrant a hearing."); Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011) (applying a heightened pleading requirement in habeas cases and noting that "[tithe evidence supporting an [IACJ claim is available following the conviction, if not before. Whatever the claim, though, the petitioner is, or should be, aware of the evidence to support the claim before bringing his petition."); Gerwald v. United States, 2014 WL 1681506 at * 3 n. 5 (S.D. Ga. Apr. 28, 2014).[6] That requirement bears special application here, given the fact that

[e]quitable tolling is unavailable in most cases. Indeed, the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule. It is an exceedingly narrow window of relief that must be applied sparingly to habeas petitions so as not to create a loophole which is contrary to the legislative intent of insuring a greater degree of finality. Courts have cautioned that equitable tolling should be invoked only sparingly and only as a narrow safety valve reserved from instances of clear injustice. The merits of the federal ...

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