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Cole v. Halverson

United States District Court, D. Minnesota

May 16, 2019

Derrell Jacori Cole, Petitioner,
v.
Karen Halverson, Warden, Respondent.

          REPORT AND RECOMMENDATION

          Hon. Leo I. Brisbois United States Magistrate Judge

         This matter comes before the undersigned United States Magistrate Judge pursuant to a general referral in accordance with the provisions of 28 U.S.C. § 636 and Local Rule 72.1, as well as, upon Petitioner Derrell Jacori Cole's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [Docket No. 1]

         Petitioner Derrell Jacori Cole was convicted of aiding and abetting first-degree aggravated robbery in state court. Cole challenges that conviction and the sentence imposed for that conviction through a Petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Cole's Petition is before the Court pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Based on that review, this Court concludes that Cole's Petition is untimely and that no exception to the timeliness requirements applies in this case.

         Accordingly, it is recommended that the Cole's Petition, [Docket No. 1], be summarily dismissed.

         Cole challenges his conviction and sentence on four grounds: (1) that the trial court improperly admitted evidence regarding two prior convictions for first-degree aggravated robbery; (2) that his speedy-trial rights were violated; (3) that the prosecution did not provide notice of its intent to seek an “aggravated sentence” until shortly before trial; and (4) that two witnesses provided false testimony at trial. (See, Petition [Docket No. 1]). An in-depth analysis of the merits of Cole's claims is unnecessary, however, because Cole's Petition is plainly barred by the relevant statute of limitations. Under 28 U.S.C. § 2244(d)(1):

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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). The final two of these provisions are inapplicable to the present case because (1) Cole is not asserting that he is entitled to relief pursuant to a constitutional right only recently recognized by the Supreme Court and (2) Cole's claim is not predicated on any new factual predicate. The limitations date can only therefore be established either by § 2244(d)(1)(A) or § 2244(d)(1)(B).

         Under § 2244(d)(1)(A), the Petition is plainly untimely. The Minnesota Court of Appeals affirmed Cole's conviction on April 3, 2017, and the Minnesota Supreme Court declined review on May 30, 2017. See, State v. Cole, No. A16-1047, 2017 WL 1208756 (Minn.Ct.App. Apr. 3, 2017). Cole then had ninety days, or until August 28, 2017, on which to file a petition for a writ of certiorari with the Supreme Court of the United States. When Cole failed to do so, his conviction became final on that date for purposes of § 2244(d)(1)(A). See, Jihad v. Hvass, 267 F.3d 803, 804- 05 (8th Cir. 2001). The limitations period established by § 2244(d)(1)(A) expired exactly one year later, on August 28, 2018. Cole did not place his present habeas Petition in the internal mail system at the institution where he is confined until March 22, 2019. (See, Petition, [Docket No. 1], at 15). This was plainly too late.

         Upon filing his Petition, however, Cole suggested that, pursuant to 28 U.S.C. § 2244(d)(1)(B), an “impediment to filing an application created by State action in violation of the Constitution or laws of the United States” may have been at least partly responsible for the delay because his “research” was lost or destroyed during a cell search. (See, Petition, [Docket No. 1], at 16). Because the date of that “cell search” was not apparent from his Petition, this Court invited Cole to expand upon the circumstances of the cell search in order to determine whether § 2244(d)(1)(B) rather than § 2244(d)(1)(A) established the proper limitations date for the present matter. (See, Order [Docket No. 3]). In his response, however, Cole points to causes other than the cell search as the reason for delay in filing the habeas petition. (See, Letter [Docket No. 5]). Accordingly, the limitations period is established by § 2244(d)(1)(A)-not § 2244(d)(1)(B)-and as explained above, the Petition is plainly too late under that provision.

         Cole argues that his Petition should be considered despite its untimeliness for two reasons. First, Cole contends that the limitations period should be equitably tolled to account for his lack of knowledge of the law, his unrepresented status, and the time that it took to prepare the Petition. (See, Letter [Docket No. 5]). “A petitioner is entitled to equitable tolling only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.'” Burks v. Kelley, 881 F.3d 663, 666 (8th Cir. 2018) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). None of the circumstances described by Cole are ...


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