United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
Leo I. Brisbois United States Magistrate Judge
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. Â§ 2254.
[Docket No. 1]
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.
it is recommended that the Cole's Petition, [Docket No.
1], be summarily dismissed.
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)(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.
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.
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