United States District Court, D. Montana, Missoula Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JEREMIAH C. LYNCH JUDGE
case comes before the Court on Petitioner Brandon Thomas
Fadely's application for writ of habeas corpus under 28
U.S.C. § 2254. (Doc. 1.) Fadely is a state prisoner
proceeding pro se.
28 U.S.C. § 2254 Petition
2014, following guilty pleas, Fadely was convicted of Sexual
Intercourse without Consent and Sexual Assault in
Montana's Twenty-First Judicial District, Ravalli County.
Fadely claims his current custody is unlawful because the
charges against him were not initiated by a grand jury, nor
was he provided a preliminary hearing, in violation of the
Montana Constitution and the United States Constitution.
(Doc. 1 at 2, 5-9.) Fadely asks this Court to dismiss this
convictions and order his release from custody. Id.
August 13, 2018, Fadely was directed to show cause as to why
his petition should not be dismissed as time-barred and/or
procedurally defaulted. (Doc. 3.) Fadely timely responded.
explained below, Fadely's petition should be dismissed
with prejudice because he has failed to demonstrate cause to
excuse his untimely filing and the default of his claims.
Response to this Court's Order, Fadely acknowledges that
his federal habeas petition is untimely. (Doc. 6 at 1.) He
explains that the underlying criminal proceeding was
extremely stressful, particularly on his wife, and that he
did not wish to cause further hardship by pursuing relief
from the Montana Sentence Review Division. Id.
Because he is untrained in the law, Fadely did not realize he
was able to challenge the constitutionality of his underlying
criminal proceedings. Id. at 2. Fadely claims that
when he learned in June of 2018 he was "constitutionally
entitled to a preliminary hearing," he began diligently
researching his claim. Id.
admits he did not attempt to present his constitutional claim
to any of the state courts of Montana. Id. But he
asserts that he learned that the state courts have endorsed
the filing of an information as a valid charging procedure,
rather than requiring an indictment by grand jury or
providing a preliminary hearing, he believed the state courts
to be biased and that pursuit of such claim would be futile.
Id. Due to this perceived bias, Fadely seeks review
in this Court, which does not "share the same
Timeliness of Petition
does not argue that he is actually innocent or that this
Court was incorrect in calculating his federal filing date,
rather, he asserts he should be entitled to equitable tolling
due to adverse circumstances that prevented him from filing
Ninth Circuit permits equitable tolling of AEDPA's
limitations period "only if extraordinary circumstances
beyond a prisoner's control make it impossible to file a
petition on time." Miles v. Prunty, 187 F.3d
1104, 1107 (9thCircuit 1999); see also,
Calderon v. U.S. Dist Ct, 163 F.3d 530, 541
(9th Cir. l998)(en banc), abrogated on other
grounds by Woodford v. Garceau, 538 U.S. 202 (2003).
For equitable tolling to apply a petitioner must show (1)
that he has been pursuing his rights diligently and (2) that
some extraordinary circumstances stood in his way to prevent
him from timely filing a federal habeas petition. Holland
v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling
is unavailable in most cases and "the threshold
necessary to trigger equitable tolling is very high, lest the
exceptions swallow the rule." Miranda v.
Castro, 292 F.3d 1063, 1066 (9th Cir. 2002);
see also, Waldron Ramsey v. Pacholke, 556
F.3d 1008, 1011 (9thCir. 2OO9)(characterizing the
Circuit's application of the equitable tolling doctrine
as "sparing" and "a rarity."). Further,
the petitioner bears the burden of showing that equitable
tolling is appropriate. Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005).
the Court appreciates the criminal proceedings involved in
Fadely's underlying convictions were undoubtedly
stressful to him and to his wife, such stress is not unique
to Fadely nor is it extraordinary. Certainly the majority of
criminal defendants and their families endure stress and
hardship attendant to a criminal prosecution and conviction.
while Fadely may have acted diligently once he discovered
what he believed to be a constitutional violation, he failed
to act with diligence prior to June of 2018. Fadely explains
this by his lack of legal training and lack of legal
representation. But, a petitioner's pro se status,
limited legal resources, ignorance of the law, or lack of
representation during the applicable filing period do not