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Wallace v. State

United States District Court, D. Montana, Butte Division

December 4, 2017

GREGORY LYNN WALLACE, Petitioner,
v.
STATE OF MONTANA, Respondent.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.

         This case comes before the Court on Petitioner Gregory Lynn Wallace's application for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). Wallace is a state prisoner proceeding pro se.

         On October 13, 2017, Wallace was ordered to show cause as to why his petition should not be dismissed as time-barred. (Doc. 4). Wallace timely responded. (Doc. 11).

         I. Federal Statute of Limitations

         As explained in the Order to Show Cause, this Court has conducted its analysis in relation to the claims Wallace advances in his petition. A one-year limitations period applies to petitions filed by state prisoners under 28 U.S.C. § 2254. See, 28 U.S.C. § 2244. Absent a reason to apply one of the other "trigger" dates" in 28 U.S.C. § 2244(d)(1), Wallace's federal petition had to be filed within one year of the date his conviction became final. 28 U.S.C. § 2244(d)(1)(A). Wallace did not file a timely notice of appeal, therefore his conviction became final 60 days after entry of the written judgment, on December 14, 2015. Mont. R. App. P. 4(5)(b)(i) (2008); Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). Wallace should have filed his federal petition on or before Wednesday, December 14, 2016. But he filed in the Court on May 25, 2017, more than five months too late.[1]

         Wallace was directed to show cause why his petition should not be dismissed with prejudice as time-barred and was advised as to how he might make this showing. (Doc. 4 at 5). Wallace responded by explaining that he is a traditional Crow Indian who "barely speaks [E]nglish and has been led astray in the prison legal library by individuals who do not know the law and are predatory in nature with respect to assisting him." (Doc. 11 at 1). Wallace's response was apparently prepared by a "friend" who requested Wallace be appointed Native American counsel to assist Wallace with presenting the merits of his claims. Id. at 2.

         A habeas 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." Holland v. Florida, 560 U.S. 631, 649 (2OlO)(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). "The petitioner must show that 'the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.'" Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010); see also, Brambels v. Duncan, 330 F.3d 1197, 1202 (9th Cir. 2003). "The threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 99th Cir. 2002). The failure to file a timely petition must be the result of external forces, not the result of the petitioner's lack of diligence. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). "Determining whether equitable tolling is warranted is a 'fact-specific inquiry.'" Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).

         The record before the Court, and Mr. Wallace's history of filing in this Court, belies Wallace's assertion that he should be entitled to equitable tolling because of his own ignorance of the law or a purported language barrier. A claimed lack of legal knowledge is routinely rejected as a ground for equitable tolling. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2OO6)(collecting cases and holding "a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance"); Ford v. Pliler, 590 F.3d 782, 789 (9th Cir. 2009); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n. 4 (9th Cir. 2009). Wallace's lack of legal knowledge demonstrates that he is similarly situated to other pro se prisoners seeking habeas relief, rather than laboring under an extraordinary circumstance.

         In relation to Wallace's claim of difficulty with the English language, "a non-English speaking petitioner seeking equitable tolling must, at a minimum, demonstrate that during the running of the AEDPA time limitation, he was unable, despite diligent efforts, to procure either legal materials in his own language or translation assistance from an inmate, library personnel, or other source." Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006). In the present case, Wallace has made no such showing.

         Wallace was involved in criminal and revocation proceedings in two separate federal matters: US. V. Wallace, CR-96-79-BLG and US v. Wallace, CR-04-61-BLG. Wallace did not request the assistance of an interpreter nor did counsel request one on Wallace's behalf in either case. Moreover, Wallace, representing himself, has filed three separate §2254 petitions, aside from the present petition.[2] With the exception of the claim regarding being a Native-Crow speaker that Wallace advances in the present petition, Wallace has never advised the Court that he requires the assistance of a Crow-speaker. Additionally, Mr. Wallace acting as a pro se plaintiff, has filed twenty-three separate civil actions in this District.[3] Eleven of these civil actions were filed during the time in which Wallace's one-year limitations period was running in the present matter. Thus, Wallace cannot demonstrate that a difficulty with the English language prevented him from having the ability to file matters in this Court. Or, to put it another way, Wallace has not demonstrated that his failure to timely file his habeas petition was the result of external forces, rather, it would appear in the instant case, Wallace's untimely filing resulted from his failure to act diligently.

         II. Conclusion

         Wallace's petition is untimely and his failure to comply with the federal limitations period cannot be excused. Wallace's petition should be dismissed as time-barred.

         III. Certificate of Appealability

         "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a), Rules governing § 2254 Proceedings. A COA should issue as to those claims on which a petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The standard is satisfied if "jurists of reason could disagree with the district court's resolution of [the] constitutional claims" or "conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell,537 U.S. 322, 327 (2003) (citing Slack v. McDaniel,529 U.S. 473, 484 (2000)). Where a claim is dismissed on procedural grounds, the court must also decide whether "jurists of reason would find it debatable whether ...


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