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Cornelius v. White

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

June 12, 2019




         The pro-se Petitioner filed an original, first-amended, and second-amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. [R. 1, 7, 11.] Respondent responded in opposition to the petitions, and Petitioner replied. [R. 22, 23.] Thereafter, Petitioner filed a motion for the Court to grant his writ of habeas corpus, to which Respondent responded in opposition. [R. 28, 29.] The Court referred this case to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636. [R. 30.]

         Although not argued by Respondent, Petitioner appears to have filed his petitions well past the 1-year period of limitation established by 28 U.S.C. § 2244(d). Accordingly, the Court shall, as allowed, pursue the matter sua sponte but shall, as required, first give the parties a fair opportunity to respond to the issues raised in this Opinion and Order.

         Background facts and procedural history

         Petitioner pled guilty in the Jefferson Circuit Court to burglary, attempted kidnapping, and assault and was sentenced to nineteen (19) years' imprisonment. [R. 22-3 at PageID # 116-18.] The Court entered its final Judgment Of Conviction And Sentence (After Plea And Waiver Of Separate Sentencing) on August 11, 2015. [Id.] Petitioner did not file a direct appeal.[1]

         According to Respondent, although “[t]he state court record does not contain the actual motion, ” Petitioner “filed a motion to vacate his sentence pursuant to RCr [Kentucky Rules of Criminal Procedure] 11.42 on September 7, 2016.” [R. 22 at PageID # 92-93.] On November 7, 2016, the Jefferson Circuit Court denied Petitioner's 11.42 motion.[2] [R. 22-3 at PageID # 125-26.]

         On February 17, 2017, Petitioner filed a notice of appeal from the November 7, 2016 Order denying his 11.42 motion. [Id. at PageID # 128.] On August 18, 2017, the Kentucky Court of Appeals dismissed Petitioner's appeal as untimely:

… Kentucky rule of Criminal Procedure (RCr) 12.04(3) and Kentucky Rule of Civil Procedure (CR) 73.02(1)(a) require the notice of appeal to be filed within thirty days from the date of entry of the judgment or order form which the appeal is being taken. … The filing of a notice of appeal within the prescribed time frame is mandatory and failure to do so is fatal to an appeal. CR 73.02(2). [Petitioner's] notice of appeal was not timely filed as it was not tendered to the clerk of the Jefferson Circuit Court until after the deadline to file a notice of appeal.[3]

[Id. at PageID # 128-29.]

         Petitioner sought discretionary review of the Kentucky Court of Appeals' dismissal. [Id. at PageID # 130-34]. On February 7, 2018, the Kentucky Supreme Court denied discretionary review. [Id. at 135.]

         Petitioner filed his original habeas petition in this Court on or about March 27, 2018.[4] [R. 1.]

         The Court may raise the timeliness of a habeas petition sua sponte.

         “Ordinarily in civil litigation, a statutory time limitation is forfeited if not raised in a defendant's answer or in an amendment thereto.” Day v. McDonough, 547 U.S. 198, 202 (2006). However, subject to the two limitations discussed below, a federal district court may consider a forfeited habeas defense sua sponte. Id. at 201. In Day, the State (the respondent) miscalculated the No. of days running between the finality of Day's state-court conviction and the filing of his federal habeas petition. Id. at 203. As a result, the State erroneously informed the District Court that Day's petition was timely. Id. A Magistrate Judge caught the State's computation error and recommended that the petition be dismissed as untimely, notwithstanding the State's timeliness concession. Id. at 204. The District Court adopted the recommendation, and the Court of Appeals affirmed. The Supreme Court affirmed, holding that the statute of limitations “implicat[es] values beyond the concerns of the parties” and, therefore, “district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.” Id. at 205, 209.

         As indicated above, a district court's ability to consider the timeliness of a habeas petition issue sua sponte is limited in two ways. First, a district court should not act sua sponte where the State “strategically withheld the [period of limitation] defense or chose to relinquish it, ” i.e., the State deliberately waived the issue.[5]Id. at 210-11. In Day, the Supreme Court emphasized that the State's concession of timeliness resulted from “inadvertent error.” Id. at 211. In this case, the Court finds no concession of timeliness and regards Respondent's not arguing that the petitions are untimely as ...

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