Finlayson v. Powell

JEFFERY RUSSELL FINLAYSON, Petitioner, v. ROBERT POWELL, Respondent.

No. 2:19-cv-599-DBB

United States District Court, D. Utah

April 7, 2022

MEMORANDUM DECISION & ORDER GRANTING MOTION TO DISMISS

DAVID BARLOW, JUDGE

District Judge David Barlow Petitioner, Jeffery Russell Finlayson requests federal habeas relief regarding his Utah state convictions.^[1] Having carefully considered germane documents and law, the court concludes that Petitioner's petition is inexcusably untimely.^[2] The petition is therefore dismissed with prejudice.

I. RELEVANT TIMELINE

• 12/1/11 Petitioner was sentenced to terms of six-years-to-life (aggravated kidnaping); zero-to-five years (aggravated assault); and 180 days (damage to or interruption of communication device). (ECF No. 1-6, at 108 (state dist ct. case no. 101904639).)

• 11/28/14 Utah Court of Appeals affirmed the convictions on direct appeal. State v. Finlayson, 362 P.3d 926, 930 (Utah App. 2014).

• 2/23/15 Utah Supreme Court denied certiorari review on direct appeal. State v. Finlayson, 343 P.3d 708 (Utah 2015) (table).

• 5/25/15 Date upon which the deadline passed to file certiorari petition with United States Supreme Court, Sup. Ct. R. 13.1 (giving 90 days to file “petition for a writ of certiorari to review a judgment in any case . . . entered by a state court of last resort”), signaling conclusion of direct review.

• 2/23/16^[3] State post-conviction petition (PCP) filed. (ECF No. 10-3, at 1 (state dist. ct. case no. 160901505).)

• 8/17/18 Utah Court of Appeals affirmed post-conviction court's decision denying relief. Finlayson v. State, No. 20180374-CA, slip op. (Utah App. August 17, 2018).

• 9/6/18 Utah Supreme Court denied certiorari review on PCP. (ECF No. 10-5.)

• 8/5/19^[4] Filing of federal petition. (ECF No. 1-6, at 217.)

• 9/28/20 Filing of Respondent's Motion to Dismiss, arguing petition is inexcusably untimely. (ECF No. 10.)

• 6/4/21 to Filing of Petitioner's opposition to Motion to Dismiss, supplemental evidence, and 11/18/21 request for hearing, together with Respondent's responsive filings. (ECF Nos. 19, 21-22, 25, 30-35.)

II. ANALYSIS

Federal statute sets a one-year period of limitation to file a habeas-corpus petition.^[5] The period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”^[6] So, when the time expired for Petitioner to seek certiorari review in the United States Supreme Court on May 25, 2015, the one-year limitation period began running.

A. STATUTORY TOLLING

The limitation period “is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period.”^[7] A “state postconviction application ‘remains pending' ‘until the application has achieved final resolution through the State's postconviction procedures.'”^[8] Once the post-conviction case ends in state court, the one-year limitation period begins to run again.

Tolling, however, does not revive the limitations period--i.e., restart the clock at zero. It serves only to suspend a clock that has not already run.^[9] Thus, any time between when a petitioner's direct appeal becomes final and when he files his petition for state post-conviction relief is counted in the limitations period. And, any time between when the state post-conviction action concludes and before a petitioner's habeas petition is filed also counts toward the limitations period because state-collateral review only pauses the one-year period; it does not delay its start.^[10]

In other words, time elapsing after a petitioner's conviction becomes final on direct review, but before a state post-conviction petition is filed, and time after final disposition of the petitioner's post-conviction proceedings, but before the filing of the federal habeas petition, aggregate to count against the one-year-limitation period.^[11] From May 25, 2015 (the date upon which direct appeal was final), the limitation period ran 274 days, when, on February 23, 2016, Petitioner filed his (ultimately unsuccessful) state post-conviction application and tolled the period. 91 days remained at that point. The state post-conviction action concluded on September 6, 2018, the date upon which the Utah Supreme Court denied Petitioner's certiorari petition on his PCP.^[12] The period began running on that day and expired 91 days later on December 6, 2018.

Petitioner filed this federal action on August 5, 2019--242 days too late.^[13] As a result, Petitioner has no ground for statutory tolling.

B. EQUITABLE TOLLING AND EXCEPTION

Plaintiff also argues for equitable tolling, both on the basis of extraordinary circumstances and actual innocence. “Equitable tolling is ‘a judicially-crafted stopping of the clock' that” is applied “‘only in rare and exceptional circumstances.'”^[14] It “will not be available in most cases, as extensions of time will only be granted if ‘extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time.”^[15] Examples warranting equitable tolling are “‘when an adversary's conduct . . . prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period.'”^[16] Meanwhile, “equitable exception” refers to “actual innocence” that “‘serves as a gateway through which a petitioner may pass' . . . to overcome . . . his failure to abide by the federal statute of limitations in order to have his . . . claim[s] heard on the merits.”^[17]

On both grounds, Petitioner “has the burden” of showing equitable tolling or an equitable exception applies.^[18]

1. Extraordinary Circumstances

Petitioner argues that his late filing here should be excused due to “the combined effects of Petitioner's mental impairment and the contract attorney's affirmative misrepresentations, ” which “created extraordinary circumstances that prevented Petitioner from filing his state habeas petition for at least 300 days.”^[19] He further contends that “the prison's loss and destruction of Petitioner's crucial legal records in 2017, as well as Petitioner's subsequent efforts to locate and re-obtain said records from September, 2017 until June, 2019, ” shows that “he provably qualifies for equitable tolling for nearly two years (September, 2017 until June, 2019).”^[20] Combining these two periods, Petitioner casts the entire passing and expiration of the federal period of limitation as qualifying for equitable tolling.

a. Timeline of Facts Relevant to Equitable-Tolling Argument^[21]

• 2/23/15 Utah Supreme Court denied certiorari review on direct appeal. State v. Finlayson, 343 P.3d 708 (Utah 2015) (table).

• 5/25/15 Date upon which the deadline passed to file certiorari petition with United States Supreme Court, Sup Ct. R. 13.1 (giving 90 days to file “petition for a writ of certiorari to review a judgment in any case . . . entered by a state court of last resort”), signaling conclusion of direct review.

• 3/3/15 Petitioner's head was injured “during fight, ” resulting in “[l]aceration to face” and a self-report of feeling “stunned, ” but no loss of consciousness. (ECF No. 22, at 23, 25.) Medical provider noted, “Speech is fluent, lucid and appropriate.” (Id. at 25.)

• 3/24/15 Hospital report states that a “Brain CT” was done, resulting in a diagnosis of, “essentially normal brain CT.” (Id. at 27.)

• 5/25/15 Date upon which deadline passed to file certiorari petition with United States Supreme Court. Sup. Ct. R. 13.1 (giving 90 days to file “petition for a writ of certiorari to review a judgment in any case . . . entered by a state court of last resort”).

• 10/16/15 Petitioner met with a contract attorney, who wrote in a memorandum, “There is a one-year statute of limitations to file a 2254 Petitioner in Federal Court. That is one year from the date your state remedies have been exhausted. Therefore, your filing of the 2254 appears to have been timely filed.” (ECF No. 19-1.)

• 11/6/15 In a different case in this court, as a pro se litigant, Petitioner signed a sophisticated and intricately detailed eighty-five-page federal habeas petition. Finlayson v. Utah, No. 2:15-CV-818-DAK (D. Utah filed November 18, 2015) (Section 2254 habeas petition, ECF No. 1).

• 11/17/15 In a different case in this court, as a pro se litigant, Petitioner signed a sophisticated and intricately detailed eighty-seven-page Memorandum in Support of Petition for Writ of Habeas Corpus. Id. at ECF No. 2.

• 11/30/15 In a different case in this court, as a pro se litigant, Petitioner filed “Supplemental Exhibits.” Id. at ECF No. 3.

• 12/16/15 A form, titled, “Inmate File Intake/Checklist, ” reveals that a contract attorney “conducted initial interview with” Petitioner and gave him a state-post-conviction packet. (ECF No. 19-1.)

• 2/8/16 In a different case in this court, as a pro se litigant, Petitioner filed “Request to Submit for Decision Petitioner's Motion to Reopen Time to File an Appeal, and Notice of Appeal.” Finlayson, No. 2:15-CV-818-DAK, at ECF No. 4.

• 2/23/16 State post-conviction petition (PCP) filed. (ECF No. 10-3, at 1 (state dist. ct. case no. 160901505).)

• 8/8/17 Petitioner was hospitalized off-site for two weeks. (ECF No. 22, at 37.) His belongings were therefore inventoried; a copy of Central Utah Correctional Facility (CUCF) “Inmate Property Inventory” form shows, “12 legal pad[s]”; “5 boxes of legal/public ma” [sic]; “12 inches of legal/public mate” [sic]; with a code of “(D) Disposition # 116328.” (Id. at 5.) “All items coded ‘D' on the inventory form . . . must be mailed or picked up and removed from the Institution.” (Id. at 7.)

• 8/27/17 Upon Petitioner's return to prison from the

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