United States District Court, D. Oregon
Thomas J. Hester, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Ellen F. Rosenblum, Attorney General, Nick M. Kallstrom, Assistant Attorney General Department of Justice, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
MARCO A. HERNANDEZ, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court robbery and burglary convictions. Because petitioner failed to timely file this action, and as he is not entitled to equitable tolling, the Petition for Writ of Habeas Corpus (#2) is dismissed.
In May 1999, petitioner pleaded guilty in the Multnomah County Circuit Court to two counts of Robbery in the First Degree and one count of Burglary in the First Degree. Respondent's Exhibit 101. Petitioner did not take a direct appeal,  nor did he file for post-conviction relief ("PCR"). Instead, in 2004 he filed a motion in the Multnomah County Circuit Court asking the trial court to correct his sentence in light of the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004). Respondent's Exhibit 127. He also asked the court to appoint counsel to assist him with that motion. Respondent's Exhibit 126. However, he subsequently moved to voluntarily dismiss his sentencing challenge in March 2005. Respondent's Exhibits 128 & 129.
In April 2005, petitioner wrote his trial attorney asking for a copy of his sentencing transcripts. Respondent's Exhibit 131. The following month, petitioner filed a motion asking the trial court to compel his trial attorney to provide him with his sentencing transcripts. Respondent's Exhibit 130. In June, counsel informed petitioner that he did not have his sentencing transcripts, but offered assistance in obtaining them. Respondent's Exhibit 131, pp. 2-6.
In April 2006, petitioner filed another motion in the Multnomah County Circuit Court seeking to amend his sentence based upon the Supreme Court's Blakely decision. Respondent's Exhibit 132. The trial court denied the motion. Respondent's Exhibit 133.
In May 2006, petitioner wrote a letter to the Oregon Court of Appeals prompting that court to inform him that no appeal had been filed on his behalf. Petitioner's Exhibit C.
Almost two years later, petitioner filed for state habeas corpus relief. He alleged, in part, that his attorney had led him to believe that he would file a direct appeal. Respondent's Exhibit 134, p. 3. The trial court denied relief, and petitioner voluntarily dismissed his subsequent appeal because he was "informed that it may in fact be possible for appellant to file a petition for post-conviction relief even though appellant is past the 2 year time limit...." Respondent's Exhibit 137.
In March 2009, petitioner filed a PCR action. Respondent's Exhibit 102. The PCR trial court found the PCR Petition to be untimely and granted the State's summary judgment motion. Respondent's Exhibit 117. The Oregon Court of Appeals affirmed the lower court's decision without opinion, and the Oregon Supreme Court denied review. Young v. Nooth, 250 Or.App. 396, 282 P.3d 30, rev. denied, 353 Or. 104 , 295 P.3d 51 (2012).
On March 27, 2013, petitioner filed his federal Petition for Writ of Habeas Corpus. The parties agree that petitioner breached the applicable one-year statute of limitations by approximately 13 years, but petitioner argues he is entitled to equitable tolling because: (1) his trial attorney failed to file a direct appeal after he allegedly told petitioner he would do so; and (2) petitioner has a long history of mental illness that made it impossible for him to comply with the one-year statute of limitations.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that a one-year statute of limitations applies to federal habeas corpus actions filed by state prisoners. 28 U.S.C. 2244 (d) (1). Equitable tolling is available to toll the one-year statute of limitations in limited circumstances. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). A litigant seeking to invoke equitable tolling must establish: (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance prevented him from timely filing his petition. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) A petitioner who fails to file a timely petition due to his own lack of diligence is not entitled to equitable tolling. Tillema v. Long, ...