United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
Sherman Douglas Perry (hereafter, “Perry”) is an
inmate housed at the Eastern Kentucky Correctional Facility.
Proceeding pro se, Perry filed a motion on February
27, 2017, seeking to vacate, set aside or correct his
sentence under 28 U.S.C. § 2254.[1"
name="FN1" id="FN1">1] [Record No. 1] The motion
was referred to a United States Magistrate Judge for the
issuance of a report and recommendation in accordance with 28
U.S.C. § 636(b)(1)(B).
Judge Robert E. Wier initially observed that the petition
appeared to be untimely and directed the parties to address
that issue as well as equitable tolling. [Record No. 7] After
considering the parties' responses [Record Nos. 10, 13],
the magistrate judge issued a Recommended Disposition in
which he recommended that the petition be dismissed and that
no Certificate of Appealability be issued. [Record No. 14]
Perry filed objections to the Recommended Disposition on June
21, 2017. [Record No. 15]
Court is reviews de novo any portion of the
magistrate judge's recommendation to which objections
have been filed. Fed.R.Civ.P. 72(b)(3). However, in this
case, the Court has considered Perry's objections and
conducted a de novo review of all of his claims. The
Court will overrule Perry's objections and deny his
motion for the reasons outlined below.
petition for a writ of habeas corpus under § 2254 is
subject to the one-year statute of limitations as provided in
28 U.S.C. § 2244(d). This period begins to run, as
relevant here, on “the date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review[.]” 28
U.S.C. § 2244(d)(1)(A). This period is tolled for 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 . . . .”
28 U.S.C. § 2244(d)(2).
underlying judgment was entered on July 21, 2011. The
Kentucky Supreme Court affirmed that judgment on December 20,
2012. [Record No. 10, Ex. 1, p. 11] The 90-day period for
filing a writ of certiorari began to run on this date.
Because Perry did not file a petition for a writ of
certiorari, his judgment became final when the 90-day filing
period concluded on March 20, 2013.[2"
name="FN2" id="FN2">2] The one-year statute of
limitations period began to run on this date. The statute of
limitations period was tolled 365 days later when Perry filed
a state post-conviction relief motion under RCr 11.42 on
March 20, 2013. [Id. at 12] The trial court denied
the motion and the Kentucky Court of Appeals affirmed on
April 22, 2016. The Kentucky Supreme Court denied
discretionary review on February 9, 2017. Thus, the statute
of limitations period continued to run again as of this date.
Perry filed his § 2254 petition 18 days later (i.e., on
February 27, 2017). [Id.]
magistrate judge concluded that Perry's petition was
time-barred because he did not file his § 2254 petition
until 383 days after his state court judgment became final.
[Record No. 14] Perry appears to acknowledge in his
objections that he filed his petition outside the one-year
statute of limitations period. [Record No. 15] However, he
argues that he is entitled to equitable tolling based on the
actions of the Legal Aide of the Eastern Kentucky
Correctional Complex. He specifically asserts that the Legal
Aide delayed the filing of his state post-conviction motion
under RCr 11.42 and also improperly advised him that the
one-year limitations period had not yet passed at the time
that he filed his petition.
doctrine of equitable tolling “allows courts to toll a
statute of limitations when a litigant's failure to meet
a legally-mandated deadline unavoidably arose from
circumstances beyond [his] control.” Robertson v.
Simpson, 24 F.3d 781');">624 F.3d 781, 783 (6th Cir. 2010) (internal
quotation marks and citation omitted). Courts use the
doctrine of equitable tolling “sparingly” and
“[t]he party seeking equitable tolling bears the burden
of proving he is entitled to it.” Id. at 784.
The party must show: (1) that he has diligently pursued his
rights; and (2) some extraordinary circumstance prevented him
from filing his petition within the limitations period.
Hall v. Warden, Lebanon Corr. Inst., 2 F.3d 745');">662 F.3d 745,
749-50 (6th Cir. 2011) (internal quotation marks and citation
argues primarily that he is entitled to equitable tolling
because the Legal Aide obtained his case file to prepare his
RCr 11.42 motion and filed it 365 days after the statute of
limitations on his § 2254 had begun to run. Perry states
that “his federal toll [sic] had been spoiled by the
filing of his RCr 11.42 . . . .” [Record No. 15, 2');">p. 2]
He further contends that the RCr 11.42 motion “stood in
[his] way and prevented his timely filing . . . .”
However, the basis for Perry's apparent belief that the
RCr 11.42 motion prevented him from complying with the
statute of limitations for his § 2254 petition is
unclear. The record contains no indication that the RCr 11.42
motion was improperly filed such that it did not toll the
statute of limitations period. Further, Perry does not
explain how the RCr 11.42 motion had any impact on his
ability to file his § 2254 petition before the statute
of limitations period elapsed. Because Perry fails to explain
how the Legal Aide acted improperly or prevented him from
complying with the statute of limitations, he fails to show
extraordinary circumstances that prevented him from filing.
This argument for equitable tolling fails.
argument that he is entitled to equitable tolling because the
Legal Aide advised him improperly regarding the statute of
limitations period also fails. Equitable tolling is not
available for “garden variety claim[s] of excusable
neglect . . . .” Holland v. Florida, 560 U.S.
631, 651-52 (2010). As a result, an attorney's
miscalculation regarding the statute of limitations period
“is simply not sufficient to warrant equitable tolling
. . . .” Lawrence v. Florida, 27');">549 U.S. 327,
336 (2007). Perry appears to allege that the Legal Aide
improperly advised him that the statute of limitations period
had not yet expired at the time that he filed his § 2254
petition. Without more, this amounts to no more than a
“garden variety” claim of miscalculation of the
statute of limitations period. It is well-established that
this type of claim does not qualify as an extraordinary
circumstance that would justify equitable tolling.
Accordingly, this argument also fails.
is not entitled to a Certificate of Appealability on any
issue. Under Slack v. McDaniel, 29 U.S. 473');">529 U.S. 473, 478,
Perry must show “that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists would find
it debatable whether the district court was correct in its
procedural ruling.” Perry's petition is clearly
time-barred. Additionally, his objections regarding equitable
tolling are meritless. The Legal Aide's actions in
obtaining Perry's case file and filing a RCr 11.42 motion
on his behalf, thereby tolling the statute of limitations
period, do not qualify as an extraordinary circumstance that
would entitle Perry to equitable tolling. Likewise, the Legal
Aide's alleged improper advice regarding the statute of
limitations period is “garden variety” neglect
that does not constitute an extraordinary circumstance beyond
Perry's control for purposes of the equitable tolling
analysis. Because Perry's arguments and objections are
clearly meritless, it is not “debatable” whether
the procedural ruling is correct and a Certificate of
Appealability is not appropriate.
reasons outlined above, it is hereby
United States Magistrate Judge Robert E. Wier's
Recommended Disposition [Record No. 14] is ...