United States District Court, D. Montana, Butte Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.
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.
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).
Federal Statute of Limitations
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
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.
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).
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.
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.
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. 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. 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
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.
Certificate of Appealability
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 ...