United States District Court, D. Montana, Great Falls Division
W. Molloy, District Judge.
October 21, 2013, Darrell Dean Sharp filed a petition seeking
a writ of habeas corpus under 28 U.S.C. § 2254. (Doc.
1.) United States Magistrate Judge John T. Johnston
recommends denying Sharp's claims. (Doc. 65.) Sharp filed
objections to Judge Johnston's Findings and
Recommendation on March 2, 2017, (Doc. 68), and is therefore
entitled to de novo review of the specified findings
or recommendations to which he objects. 28 U.S.C. §
636(b)(1). The Court reviews the findings and recommendations
not specifically objected to for clear error. McDonnell
Douglas Corp. v. Commodore Bus. Mack, Inc., 656 F.2d
1309, 1313 (9th Cir. 1981). Clear error exists if the Court
is left with a "definite and firm conviction that a
mistake has been committed." United States v.
Syrax, 235 F.3d 422, 427 (9th Cir. 2000). Because the
parties are familiar with the factual and procedural
background, it will not be restated here.
Amended Petition, Sharp presents three claims: (1)
ineffective assistance of trial counsel for failure to file a
notice of appeal, (Doc. 46 at 22-23); (2) ineffective
assistance of trial counsel for failure to move to withdraw
Sharp's guilty plea, (id. at 23-25); and (3)
breach of the plea agreement, (id. at 25-27). Judge
Johnston concludes that Sharp's Amended Petition is
time-barred, that Sharp is not entitled to statutory or
equitable tolling, and that no certificate of appealability
should issue because Sharp failed to make a substantial
showing that he was deprived of a constitutional right. (Doc.
65 at 11-12, 14-15.) Sharp objects, arguing that (1) the
Amended Petition should not be dismissed as time-barred
"when there are at least two open questions of fact
which, if resolved in Sharp's favor, would affect whether
Sharp's petition was time-barred, " (Doc. 68 at 3);
(2) Judge Johnston erred in concluding Sharp was not entitled
to equitable tolling, (id. at 6-8); and (3) Judge
Johnston erred in concluding Sharp was not entitled to a
certificate of appealability, (id. at 8-10). Sharp
further argues that his ineffective assistance of counsel
claims as well as his allegation that transcripts were not
delivered to him warrant an evidentiary hearing because those
incidents entitle him to tolling of the statute of
limitations. (Id. at 3, 8.) Sharp's objections
are not well taken.
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") establishes a one-year period of
limitation for a state prisoner to file a federal petition
for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1);
Jiminez v. Quarterman, 555 U.S. 113, 114 (2009). As
a general rule, the statute of limitations period runs from
"the date on which the judgment becomes final by the
conclusion of direct review or the expiration of time for
seeking such review." 28 U.S.C. § 2244(d)(1)(A).
However, "[t]he time during which a properly filed
application for State post-conviction review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection." 28 U.S.C. § 2244(d)(2).
does not object to Judge Johnston's finding that the
Amended Petition was untimely absent appropriate tolling.
This finding is not clearly erroneous, and thus is adopted.
Final judgment was entered on August 27, 2010, and Sharp
timely filed an application for review with the Sentence
Review Division. (Doc. 65 at 8). The Sentence Review Division
decision was filed with the trial court on June 2, 2011.
(Id.) It is undisputed that the AEDPA statute of
limitations began to run the following day, on June 3, 2011.
Absent applicable tolling, Sharp had one year in which to
file his federal petition. Thus, Sharp's petition should
have been filed on or before Friday, June 3, 2012. However,
Sharp's petition was filed with this Court on October 21,
2013, more than one year beyond the expiration of the
does not specifically object to Judge Johnston's finding
that he is not entitled to statutory tolling and there is no
clear error. As set forth above, the AEDPA statute of
limitations depends on the direct and collateral review
actually filed and pursued as shown by the record of the
case. 28 U.S.C. § 2244(d). Sharp acknowledges that the
only filing that met the collateral review requirement was an
untitled document filed February 20, 2013, after the AEDPA
statute of limitations expired. (Doc. 46 at 16.) There is no
evidence in the record that a claim of ineffective assistance
of counsel was filed prior to June 3, 2012. Additionally,
neither of Sharp's petitions for out-of-time appeal to
the Montana Supreme Court checked the box alleging that Sharp
"discussed filing a timely appeal with my attorney, but
he or she failed to file it[.]" (See Resp't
Exs. A at 1-2, C at 2 (Docs. 51-1, 51-3).) Because no
ineffective assistance claim, nor any other document which
would entitle Sharp to statutory tolling, was filed by Sharp
prior to the expiration of the statute of limitations on June
3, 2012, an evidentiary hearing is unnecessary and would not
be relevant to the outcome of Sharp's current petition.
Therefore, Sharp's request for a hearing on these matters
is denied and he is not entitled to statutory tolling.
objects to Judge Johnston's finding that he is not
eligible for equitable tolling, arguing an unanswered
question remains as to "whether [he] should be entitled
to equitable tolling as a result of the court reporter's
apparent failure to provide Sharp with transcripts."
(Doc. 68 at 2.) The limitations period is subject to
equitable tolling if the petitioner demonstrates "(1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstances stood in his way."
Holland v. Florida, 560 U.S. 631, 649 (2010). The
petitioner bears the burden of alleging facts that establish
extraordinary circumstances stood in his way. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). The petitioner
must also establish a "causal connection" between
the extraordinary circumstance and his failure to file a
timely petition. Bryant v. Ariz. Attorney Gen., 499
F.3d 1056, 1061 (9th Cir. 2007).
failed to demonstrate a particularized need for the
transcripts in question. Moreover, he is unable to show that
a lack of these documents constituted extraordinary
circumstances which prevented him from timely filing his
petition. Because Sharp has not met his burden of
establishing either an extraordinary circumstance or the