United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge United States District Court.
matter is before the Court on Petitioner's Motion for
Equitable Tolling (DN 3) and Plaintiff's Motion for
Evidentiary Hearing (DN 22). For the reasons stated below,
the Motion for Equitable Tolling is GRANTED,
and the Motion for Evidentiary Hearing is DENIED AS
John Wayne Collins (“Collins”) was convicted of
murder in Warren Circuit Court. (Pet'r's Mot.
Equitable Tolling 1, DN 3 [hereinafter Pet'r's Mot.];
Resp't's Resp. Pet'r's Mot. Equitable Tolling
2, DN 9 [hereinafter Resp't's Resp.]). His conviction
was upheld on direct appeal to the Kentucky Supreme Court,
and his petition for rehearing was denied. (Pet'r's
Mot. 1; Resp't's Resp. 2). Petitioner's
collateral attack of the conviction in Kentucky courts
pursuant to Kentucky Rule of Criminal Procedure 11.42
(“RCr 11.42”) was unsuccessful at the trial and
intermediate appellate levels, and the Kentucky Supreme Court
denied further review on December 11, 2013. (Pet'r's
Mot. 2-3; Resp't's Resp. 3).
Collins learned that his attorney would not be pursuing a
petition for habeas corpus under 28 U.S.C. § 2254 on his
behalf, Collins petitioned this Court pro se and
moved for equitable tolling to excuse the belated filing of
his petition. This Court previously denied Collins'
motion and dismissed the petition as untimely. (Mem. Op.
& Order 13).
Collins v. White, No. 15-6129, slip op. (6th Cir.
Mar. 2, 2017), the Sixth Circuit reversed and remanded this
Court's ruling. See Id. at 5. In remanding this
case, the Sixth Circuit directed this Court to consider the
diligence prong under the analysis set forth in Holland
v. Florida, 560 U.S. 631 (2010). See id.
Court has jurisdiction to “entertain an application for
a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court” pursuant to
28 U.S.C. § 2254.
Petitioner's Motion for Equitable
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Collins had a one-year statute of
limitations that ran from the denial of his collateral attack
of this state court conviction. See 28 U.S.C. §
2244(d)(1). The statute of limitations, however, is subject
to the defense of equitable tolling in appropriate
circumstances. See Holland, 560 U.S. at 645
Holland, the Supreme Court reiterated that the
defense of equitable tolling is only applicable if a
petitioner shows the following: “‘(1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented timely filing.” Id. at 649 (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Because the Sixth Circuit has previously concluded that
Collins had satisfied the second prong, this Court's
consideration is limited to the first one in determining
whether to grant Petitioner's motion.
diligence requirement “covers those affairs within the
litigant's control . . . .” Menominee Indian
Tribe of Wis. v. United States, 136 S.Ct. 750, 756
(2016). In addition, the petitioner “must have acted
with reasonable diligence throughout the period he seeks to
toll.” Rabbani v. United States, 156 F.Supp.3d
396, 403 (W.D.N.Y. 2016) (internal quotation marks omitted)
(citation omitted). As the Supreme Court has explained,
“[t]he diligence required for equitable tolling
purposes is reasonable diligence, not maximum feasible
diligence. Id. at 653 (internal quotation marks
omitted) (internal citation omitted) (citation omitted).
“The statute of limitations should be equitably tolled
until the earliest date on which the petitioner, acting with
reasonable diligence, should have filed his petition.”
Kendrick v. Rapelje, 504 F. App'x 485, 487 (6th