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Rhodes v. Spaulding

United States District Court, W.D. Kentucky, Louisville Division

September 26, 2017

WALTER J. RHODES, Petitioner,
v.
CAPT. S. SPAULDING, Warden, Respondent.

          MEMORANDUM OPINION

          THOMAS B. RUSSELL, SENIOR JUDGE

         Petitioner Walter J. Rhodes (“Rhodes”) filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 on April 25, 2016 (DN 1, 1-1). Respondent has moved to dismiss Rhodes's claims as untimely, or, in the alternative, for additional time to file a substantive response to the habeas petition (DN 15). As grounds for the motion to dismiss, Respondent argues that the habeas petition is time-barred. Rhodes filed two responses to the motion to dismiss (DN 16, 17), as well as a motion for default judgment (DN 21). Respondent did not file a reply in support of the motion to dismiss or a response to the motion for default judgment. Both the motion to dismiss and motion for default judgment are ripe for review. For the reasons set forth below, the Court will grant the motion to dismiss (DN 15) and deny the motion for default judgment (DN 21).[1]

         FINDINGS OF FACT

         The Court adopts the facts underlying Rhodes's habeas petition as set forth in the opinion of the Kentucky Court of Appeals affirming the order of the Jefferson (Kentucky) Circuit Court's order denying Rhodes's motion for post-conviction relief. See 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.”). The Kentucky Court of Appeals stated as follows:

On November 23, 1993, Rhodes pled guilty to charges of trafficking in a controlled substance (cocaine) and use or investment of drug-related income.[2] The trial court subsequently imposed a sentence of eight years' imprisonment, which was probated for a period of five years. [See DN 15-2 at 7-8.] In November 1994, the court issued a bench warrant for Rhodes's arrest when he failed to appear at a probation revocation hearing. [See Id. at 10-11.] Rhodes was not apprehended until June 1999, and he was extradited from Texas to Kentucky. Rhodes was granted shock probation in March 2000; however, his probation was revoked nine months later. [See Id. at 12-19.]
The Kentucky Parole Board granted Rhodes parole in April 2002. Five months later, he was arrested on federal drug trafficking charges and ultimately received a sentence of twenty years' imprisonment. The Kentucky Parole Board issued a parole violation warrant due to Rhodes's federal conviction and filed a detainer against Rhodes with the Federal Bureau of Prisons.
The circuit court record reflects that, since January 2006, Rhodes has filed at least ten pro se motions to set aside his conviction. [See, e.g., DN 15-2 at 20-33.] In April 2013, Rhodes filed a motion to vacate his guilty plea pursuant to RCr 11.42. Rhodes alleged his plea was invalid due to ineffective assistance of counsel and coercion by the prosecution. The circuit court summarily denied the motion [see DN 15-2 at 34-35], and th[e] appeal [to the Kentucky Court of Appeals] followed.

(DN 15-2 at 37-38 (opinion of the Kentucky Court of Appeals, No. 2014-CA-936-MR, Rhodes v. Commonwealth (appeal from Jefferson Circuit Court, Action No. 93-CR-2545)).)

         The Court of Appeals affirmed the order of the Jefferson Circuit Court. The Court of Appeals “d[id] not reach the merits of Rhodes's appeal because his motion, filed nearly twenty years after his conviction, was untimely and alleged claims that should have been raised in an earlier proceeding.” (Id. at 39.) In reaching this conclusion, the court relied upon a decision of the Kentucky Supreme Court, Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983), which provides as follows:

[A] defendant is required to avail himself of RCr 11.42 while in custody under sentence or on probation, parole or conditional discharge, as to any ground of which he is aware, or should be aware, during the period when this remedy is available to him. Final disposition of that motion, or waiver of the opportunity to make it, shall conclude all issues that reasonably could have been presented in that proceeding. The language of RCr 11.42 forecloses the defendant from raising any questions under CR 60.02 which are “issues that could reasonably have been presented” by RCr 11.42 proceedings.

(DN 15-2 at 39 (quoting Gross, 648 S.W.2d at 857).) Rhodes filed a petition for discretionary review by the Kentucky Supreme Court; the petition was denied on February 10, 2016.

         On April 25, 2016, Rhodes filed his habeas petition in this Court. Rhodes concedes that he did not file a direct appeal of his state court conviction, but asserts that his attorney at the time failed to file a notice of appeal despite Rhodes having requested that he do so. (DN 1 at 2.) Rhodes asserts five grounds for relief: (Ground One) that he was a victim of fraud on the court because the prosecutor who negotiated his guilty plea failed to inform the trial court of other terms of the plea agreement; (Ground Two) that his guilty plea was coerced because the prosecutor threatened to take legal action against Rhodes's family members if he did not plead guilty; (Ground Three) that his trial counsel failed to file a direct appeal despite Rhodes's specific request that counsel do so; that counsel falsely informed him that his appeal was denied; and that he did not discover counsel's failure to file an appeal until 2013; (Ground Four) that these actions by trial counsel constitute ineffective assistance of counsel in violation of the Sixth Amendment; and (Ground Five) that his signed waiver of rights form is nonbinding because it was tied to an “invalid plea agreement and invalid plea colloquy[.]” (See generally DN 1, 1-1.)

         In the motion to dismiss (DN 15), Respondent argues that Rhodes's habeas petition is time-barred. Respondent states that Rhodes failed to directly appeal his conviction, sentence, or shock probation revocation, but rather, waited until 2006 to collaterally attack his conviction with a series of pro se motions filed in Jefferson Circuit Court. (Id. at 2.) Respondent argues that a one-year statute of limitations for Rhodes to file a 2254 petition began running after Rhodes's judgment of conviction became final on January 22, 1994 (the date when Rhodes's time for filing a direct appeal in the Court of Appeals of Kentucky expired). That is, Respondent argues that the one-year statute of limitations expired on January 22, 1995, [3] (id. at 3-4 (relying upon 28 U.S.C. § 2244(d)(1))), and that the statute of limitations was not tolled because Rhodes failed to file a motion to vacate, set aside, or correct his sentence under Kentucky RCr 11.42 during that time period. Respondent argues that Rhodes could have asserted the claims that he asserts in this action over twenty years ago, and therefore, the Court should conclude that his petition is time-barred. (Id.)

         Rhodes filed two responses to the motion to dismiss. The first is captioned as a letter to Respondent (DN 16). Rhodes states that he objects to an extension of time for Respondent to respond to his petition on the merits. (Id. at 2.) Rhodes asserts that the Court decided the timeliness issue in an earlier order (DN 11) and that Respondent is required to respond to his petition on the merits. (DN 16 at 1.) The Court addresses this argument below in relation to Rhodes's motion for default judgment.

         In his second response, Rhodes argues that he attempted to appeal or attack his conviction based on prosecutorial misconduct and his attorney's failure to file an appeal, but that the Kentucky state courts did not believe that he only discovered on April 23, 2013 that his attorney failed to file an appeal. (Id. at 2-3.) Rhodes contends that the one-year statute of limitations to file a 2254 petition should be equitably tolled from the date of his conviction until his alleged discovery of the lack of direct appeal, “because of defense counsel[']s unprofessional conduct” and because he asserts the existence of fraud on the trial court. (Id. at 3.) Specifically, he asks the Court to find that the statute of limitations was equitably tolled from December 1993 until April 23, 2013, ran from April 23, 2013 until December 16, 2013, was tolled from December 16, 2013 to February 10, 2016, “while the petition was in the Kentucky courts, ” and finally, ran again from February 16, 2016 until he filed his 2254 petition on April 6, 2016. (Id. ...


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