United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, JUDGE
the Court is the United States Magistrate Judge's
Report and Recommendation (Doc. 9) pursuant
to 28 U.S.C. §636(b)(1). The Report and Recommendation
addresses pro se Petitioner Timothy Randazzo's habeas
corpus petition (Doc. 1) pursuant to 28 U.S.C. §2254,
attacking his criminal conviction and sentence entered in
2011. The Magistrate Judge recommended that Petitioner's
habeas corpus relief be denied, with prejudice, as untimely,
and that in the event that the petitioner seeks to pursue an
appeal, a certificate of appealability be denied. (Doc. 9 at
Report and Recommendation notified the parties that, pursuant
to 28 U.S.C. §636(b)(1), they had fourteen days from the
date they received the Report and Recommendation to file
written objections to the proposed findings of fact,
conclusions of law, and recommendations therein. Petitioner
filed a timely objection, and Defendants did not respond.
Magistrate Judge found Petitioner's petition to be
untimely under 28 U.S.C. §2244(d). Section 2244(d)
provides a one-year statute of limitations for federal habeas
corpus claims brought by prisoners in state custody. The
limitations period begins to run (1) on the date that the
judgment becomes final through the conclusion of direct
review or (2) through the expiration of time for seeking such
review. 28 U.S.C. §2244(d)(1)(A). Here, a total of 557
days elapsed between the time Petitioner's conviction
became final and the filing of the petition.
objection, Petitioner argues that although his petition was
untimely, the delay in the filing of the petition was due to
circumstances beyond his control. (Doc. 10 at p. 2).
Specifically, Petitioner alleges that he was provided
assistance with his case by inmate counsel, but that his
inmate counsel misplaced all of his legal documents.
Petitioner further states that he was transferred to another
facility, which caused a delay in receiving his legal papers.
Petitioner claims that a year and a half passed before he
received most of his legal papers. Petitioner received
assistance from inmate counsel at the new facility and was
told that his petition could still be timely if filed.
Petitioner asserts that it was the incompetent assistance of
counsel that caused his petition to be filed untimely.
Petitioner asks this Court to consider his circumstances to
be extraordinary circumstances that qualify for equitable
tolling under Holland v. Florida, 560 U.S. 631, 130
S.Ct. 2549 (2010).
Holland, the Supreme Court of the United States
ruled that the one-year statute of limitations on petitions
for federal habeas relief by state prisoners is subject to
equitable tolling in appropriate cases. The Supreme Court
made clear that a petitioner is entitled to equitable tolling
only if (1) lie shows that he was pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way. The Magistrate Judge found that Petitioner
did not show that he pursued his rights diligently, because
extended periods of inactivity exist between Petitioner's
filings. The Magistrate Judge also found that Petitioner
failed to exercise such diligent conduct that would warrant
doctrine of equitable tolling is to be applied restrictively,
and the United States Court of Appeals for the Fifth Circuit
has held that it should be applied in "rare and
exceptional circumstances when a strict application of the
statute of limitations would be inequitable." Fierro
v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002). This
Court agrees that this case lacks a showing of reasonable
diligence as required to warrant the application of equitable
tolling. Petitioner allowed 557 days to elapse between the
conclusion of direct review and the filing of his habeas
petition. This cannot be said to display reasonable diligence
in pursuing an inmate's rights.
Magistrate Judge did not explore whether Petitioner's
situation was one of extraordinary circumstances. The
Magistrate Judge did not reach this issue because the first
element of equitable tolling, reasonable diligence, was not
found. Although the absence of one element prevents the Court
from finding that equitable tolling is warranted, the Court
will nonetheless address the second element, because it is
the basis of Petitioner's objection. The Fifth Circuit
has defined extraordinary circumstances as when the
petitioner is "prevented in some extraordinary way from
asserting his rights." See Coleman v. Johnson,
184 F.3d 398, 402 (5th Cir.1999)(quoting Rashidi v.
American President Lines, 96 F.3d 124, 128 (5th Cir.
1996). Petitioner alleges extraordinary circumstances but
provides no proof of such, and he offers no facts describing
his efforts to retrieve his legal paperwork. The series of
events Petitioner describes as extraordinary circumstances
are delays rather than roadblocks to asserting his rights.
Reasonable diligence could have overcome these delays. The
557 days between the date Petitioner's conviction became
final and the filing of the petition, without more proof,
strongly reveals a lack of reasonable diligence and
extraordinary circumstances. Thus, the Court finds that
equitable tolling is not warranted in this case.
carefully considered the underlying Complaint, the instant
motion, and related filings, the Court approves the
Magistrate Judge's Report and Recommendation, and hereby
adopts its findings of fact, conclusions of law, and
IS ORDERED that the Magistrate Judge's
Report and Recommendation (Doc. 9) is
ADOPTED as the Court's opinion herein.
IS FURTHER ORDERED that Petitioner's application