AMENDED RECOMMENDED DECISION ON 28 U.S.C. § 2254 PETITION
Musse Kasa has filed a petition for writ of habeas corpuspursuant to 28 U.S.C. § 2254. The State has filed a motion todismiss arguing that the petition is untimely and that thegrounds are procedurally defaulted. (Docket No. 5.) BecauseKasa's petition is untimely under 28 U.S.C. § 2244(d), Irecommend this court GRANT the motion and DISMISS thepetition.
The portion of 28 U.S.C. § 2244 applicable to Kasa's petitionprovides: A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of — (A) 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). The statute also provides that: "The timeduring which a properly filed application for Statepost-conviction or other collateral review with respect to thepertinent judgment or claim is pending shall not be countedtoward any period of limitation under this subsection." Id §2244(d)(2). On March 19, 2001, as part of a plea agreement, Kasa, with theassistance of an Ethiopian speaking interpreter, pled guilty tomurder. On September 7, 2001, Kasa was sentenced to a prison termof thirty-five years. The judgment was entered on the docket onSeptember 12, 2001. Kasa did not file a direct appeal but onSeptember 17, 2001, he did file a discretionary application forleave to appeal his thirty-five-year sentence. The SentenceReview Panel of the Maine Supreme Judicial Court denied Kasaleave to appeal his sentence on November 8, 2001. This order wasreceived by the Clerk of the Supreme Judicial Court on November9, 2001. Giving Kasa the benefit of the ninety-day period forseeking certiorari review of this determination from the UnitedStates Supreme Court,1 Kasa's judgment of convictionbecame final for purposes of subsection (1)(A) of § 2244(d) onFebruary 7, 2002.
Eighty-one days then elapsed until Kasa filed a petition forstate post-conviction review on April 29, 2002. At this juncturesubsection (2) of § 2244 kicked in for Kasa, tolling the runningof his subsection (1) one-year. Kasa had 284 days left in his §2244(d) year.
An order denying Kasa post — conviction relief was entered onthe docket on June 17, 2003. Kasa did not seek discretionaryreview of this order from the Maine Law Court and the twenty-oneday period in which to do so, see Me. R. App. P. 2, expired onJuly 8, 2003.
Therefore, on July 9, 2003, the 28 U.S.C. § 2244(d)(1) yearbegan to run again. With 284 days left in his § 2244 year, Kasahad until April 19, 2004, (or April 20, 2004, if you give Kasathe benefit of leap-frogging April 19, 2004, because it wasPatriot's Day, even though the Court was open for business on the 19th). Kasasigned his § 2254 petition on May 3, 2004, giving him fullbenefit of the prison mailbox rule. Therefore, his petition wasat least thirteen days late, giving Kasa the benefit of allpossible counting concessions. For purposes of a straight forwardapplication of § 2244(d)(1), being thirteen days late has thesame effect as being one year or one day late. See, e.g.,Donovan v. Maine, 276 F.3d 87 (D. Me. 2002) (affirming DistrictCourt's conclusion that the § 2254 petition was time-barred bytwelve days under § 2244(d) based on similar calculationvariables).
The First Circuit Court of Appeals has held that the § 2244statute of limitation is susceptible to equitable tolling,Neverson v. Farquharson, 366 F.3d 32, 41 (1st Cir. 2004) ("Wehold that the one-year limitations period in § 2244(d)(1) is notjurisdictional and, accordingly, can be subject to equitabletolling in appropriate cases."), although it has not yet decideda § 2254 case in which it has concluded that equitable tollingwas appropriate. In his opposition to the motion to dismiss Kasarecounts the state proceedings involving him, setting forthtranscript excerpts from his March 19, 2001, plea hearing, hisSeptember 7, 2001, sentencing, and the June 16, 2003, statepost-conviction evidentiary hearings. In the post-convictionhearing Kasa, through an interpreter, displayed confusion,frustration, and complained that his head was hurting as aconsequence of the proceedings. The post-conviction hearing wasterminated on Kasa's insistence that he did not want to continueto press his cause. In his statement of disputed factual issuesattached to this objection, Kasa states, among other things, thatthere is a factual dispute as to whether he voluntarily andintelligently ended the state post-conviction hearing and whetherhis mental health issues are sufficiently serious to warrant equitably tolling the § 2244 statute oflimitation.2 Other than quoting from the transcripts ofhis state hearings, Kasa has not explained or supported the baldassertion that he has mental health issues, let alone detailedhow they prevented him from preparing his § 2254 petition in the284-day period between July 9, 2003, and April 20, 2004. It mustbe noted that Kasa was able to complete a coherent petition byMay 3, 2004, and to file a multi-page response to the State'smotion to dismiss within ten days of that motion being filed. Imust say I have seen much more confused and incoherent pleadingsfiled by § 2254 petitioners.
"The party who seeks to invoke equitable tolling bears thedevoir of persuasion and must, therefore, establish a compellingbasis for awarding such relief." Donovan, 276 F.3d at 93(citing Delaney v. Matesanz, 264 F.3d 7, 14 (1st Cir. 2001).The First Circuit has "made it pellucid `that equitable tolling,if available at all, is the exception rather than the rule; [andthat] resort to its prophylaxis is deemed justified only inextraordinary circumstances.'" Id. (quoting Delaney, 264 F.3dat 14). Equitable tolling "is not available to rescue alitigant from his own lack of due diligence." Neverson, 366F.3d at 42 (emphasis added).3 With nothing to back-up Kasa's bald assertion that his mentalcondition so interfered with his ability to prepare his petitionin the 284 days he had at his disposal (305 if you add the timein which he could have, but did not, file for discretionaryreview by the Maine Law Court of the denial of hispost-conviction petition). In my view, Kasa falls far short ofmaking a sufficient showing of "extraordinary circumstances" soas to warrant equitable tolling.
Based upon the foregoing, I recommend the Court GRANT theRespondent's Motion to Dismiss (Docket No. 5) and DENY this28 U.S.C. § 2254 petition because it is untimely.
1. I am in no way suggesting that this would be appropriate inall similar cases. (See State Mot. Dismiss at 3 n. 6.)
2. Kasa also seems to want this court to determine whether heshould be hospitalized rather than imprisoned and to decidewhether his mental health issues are so severe that his continuedimprisonment constitutes cruel and unusual punishment. Suchreview and relief is outside the bounds of a 28 U.S.C. § 2254(a)review of Kasa's murder conviction; habeas review under § 2254asks only whether holding Kasa in custody on that convictionviolates the Constitution or laws or treaties of the UnitedStates because of some infirmity in the process of conviction.Challenges to the conditions of confinement are outside the scopeof § 2254 review and relief.
3. And this is not an instance in which this Court has playedany role that might have influenced Kasa in any way that couldhave contributed to an untimely filing, such as can be the hazardwhen a § 2254 is filed on time but is a "mixed petition," onethat contains both exhausted and unexhausted claims. SeePliler v. Ford, ___ U.S. ___, 124 S.Ct. 2441, 2448 (June 21,2004) (O'Conner, J., concurring) (suggesting that on the Court'sremand that the court should examine whether the petitioner was"affirmatively misled, either by the court or by the State," andconsider whether "equitable tolling might well be appropriate.");Neverson, 366 F.3d at 43 & n. 12 (citing the Supreme Court'spending decision in Pliler vis-à-vis the dispute of whetherequitable tolling may be appropriate when a petitioner who is indanger of running afoul of the § 2244(d) limitations period isnot offered a stay of the § 2254 petition or warned of thehazards of dismissing a mixed petition in order to exhaustunexhausted claims).