Williams v. Cass County Courthouse et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Emmanuel Williams, 	)
)
Petitioner, 	) 	ORDER GRANTING MOTION TO
) 	DISMISS SECTION 2254 PETITION
v. 	)
)
Joseph Joyce, Warden, 	) 	Case No.: 1:26-cv-00054
)
Respondent. 	)
Before the Court is a Motion to Dismiss Section 2254 Petition filed by Respondent Warden
Joseph Joyce (“Respondent”) on May 1, 2026. (Doc. No. 7). For the reasons that follow, the Court
grants Respondent’s motion (Doc. No. 7) and dismisses Petitioner Emmanuel Williams’
(“Petitioner”) petition for habeas corpus (Doc. No. 2).
I. 	BACKGROUND
A. Underlying Proceedings
On November 22, 2023, Petitioner was charged in Cass County, North Dakota with
Possession with Intent to Manufacture or Deliver Fentanyl with a Firearm, a Class A Felony. (Doc.
No. 8-4 at 1). Following a hearing and subsequent denial of Petitioner’s motion to suppress,
Petitioner entered a plea of guilty to the reduced charge of Possession with Intent to Manufacture
or Deliver Fentanyl, a Class B Felony. (Id.).
On April 2, 2024, the state court sentenced Petitioner to five years imprisonment, with all
but eighteen months suspended, followed by twelve months of supervised probation. (Id.).
Petitioner did not appeal his conviction to the North Dakota Supreme Court and did not file a
petition with the United States Supreme Court for a writ of certiorari. (See generally Doc. No. 8-
1).
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On August 8, 2025, the state probation office filed a petition for revocation, and on August
20, 2025, Petitioner was arrested on the warrant. (Id. at 4). After a revocation hearing on December
23, 2025, Petitioner’s previous sentence was revoked and conditions of probation terminated.
(Doc. 	No. 	8-6 	at 	1). 	The 	court 	subsequently 	sentenced 	Petitioner 	to 	thirty-six 	months
imprisonment, with credit for time served. (Id.).
On January 29, 2026, Petitioner filed a notice of appeal of the revocation of probation, and
on February 5, 2026, filed an amended notice of appeal. (Doc. No. 8-1 at 5). On April 9, 2026, the
North Dakota Supreme Court dismissed Petitioner’s matter in Supreme Court Case No. 20260045
for failure to file an appellant brief and the Mandate issued on May 1, 2026. (See Doc. No. 8-1 at
5). Petitioner has not filed a petition for certiorari with the United States Supreme Court. (Doc.
No. 2 at 2).
Petitioner filed a Motion for Writ of Habeus Corpus by a Person in State Custody with this
court on February 26, 2026. (Doc. No. 2).1 On May 1, 2026, Respondent filed a Motion to Dismiss
Section 2254 Petition. (Doc. No. 7). Petitioner filed a response to Respondent’s motion on May
19, 2026. (Doc. No. 11). Respondents have not filed a reply.
II. 	DISCUSSION
A. Timing of Petitioner’s § 2254 Petition
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-
year statute of limitations for filing a habeas corpus petition. 28 U.S.C. § 2244(d)(1). It provides
in relevant part that the statute of limitations commences on “the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A). If certiorari was not sought, the judgment is considered final
1 It is unclear whether Petitioner intended for his petition to address his original criminal judgment, revocation of
probation, or both.
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at the conclusion of all direct criminal appeals in the state system followed by the expiration of the
time allotted for petitioning to the United States Supreme Court for a writ of certiorari. King v.
Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012); Nichols v. Bowersox, 172 F.3d 1068, 1072 (8th Cir.
1999).
The criminal judgment in this matter was entered on April 2, 2024. (Doc. No. 8-4 at 1).
Petitioner had thirty days from April 2, 2024, to file an appeal with the North Dakota Supreme
Court, and no appeal was filed. See N.D.R. App. P. 4(b)(1). Petitioner similarly did not file a writ
with the United States Supreme Court or file a state court-post conviction application as to his
original judgment. Accordingly, Petitioner’s federal habeas clock began to run on May 2, 2024,
which includes thirty days from entry of the criminal judgment on April 2, 2024. Because
Petitioner did not seek review from the North Dakota Supreme Court within the thirty-day appeal
window, his criminal judgment became final at its expiration on May 2, 2024. See U.S. v.
Plascencia, 537 F.3d 385, 388 (5th Cir. 2008) (“For purposes of § 2254 proceedings, a state
prisoner’s conviction becomes final generally upon the expiration of direct review or the time for
seeking direct review. When a state prisoner has appealed his conviction to the state court of last
resort, the conclusion of the direct review process includes the 90-day period for seeking certiorari
in the Supreme Court. If a prisoner stops the appeal process before that point, however, the
conviction becomes final when the time for seeking further review in the state court expires.”)
(footnotes omitted).
As to Petitioner’s revocation proceedings, the court ordered Petitioner’s probation revoked
on December 23, 2025. (Doc. No. 8-1 at 5). Petitioner filed a notice of appeal to the North Dakota
Supreme Court on January 29, 2026, and an amended notice of appeal on February 5, 2026. (Id.).
Petitioner had thirty days from December 23, 2025, to file his appeal, with a deadline of January
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22, 2026. Both the notice of appeal and amended notice of appeal were untimely filed. However,
upon notification from the North Dakota Supreme Court that his notice of appeal was untimely,
Petitioner filed a motion for extension of time, which was granted. (See generally Id.). On April
9, 2026, the North Dakota Supreme Court dismissed the action for failure to proceed under the
Rules of Appellate Procedure, and the Mandate issued on May 1, 2026. (Id.). Petitioner’s AEDPA
limitations ran from December 23, 2025, until January 29, 2026, the date on which Petitioner filed
his notice of appeal. See Davis v. Purkett, 296 F.Supp.2d 1027, 1029-30 (E.D. Mo. 2003) (finding
that the statute of limitations for a federal petition begins to run the day the trial court revokes
probation). AEDPA’s limitations remained tolled until May 1, 2026, the date on which the North
Dakota Supreme Court issued its Mandate dismissing the action for failure to proceed. Excluding
the time during which the AEDPA was tolled, the statute of limitations will lapse on or about
March 25, 2027.
For Petitioner’s original judgment, AEDPA’s limitations period ran from May 2, 2024,
until on or about May 2, 2025. Petitioner’s probation revocation AEDPA limitations will run until
on or about March 25, 2027. Because Petitioner did not file the instant § 2254 habeas petition with
this court until February 26, 2026 (See Doc. No. 2), approximately 665 days from the time the
AEDPA limitations began to run on the original judgment, his motion is untimely. While the
statute of limitations has not lapsed as to the revocation matter, it will not be permitted to proceed
as further discussed below.
B. Equitable Tolling
A petitioner is entitled to equitable tolling of an untimely petition in a narrow range of
cases. Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner claiming equitable tolling must
show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
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circumstance stood in his way’ and prevented timely filing.” Id. (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418)); see also Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013) (“[E]quitable
tolling is available only when extraordinary circumstances beyond a prisoner’s control make it
impossible to file a petition on time and the extraordinary circumstances were the cause of the
prisoner’s untimeliness.”). “The diligence required for equitable tolling purposes is reasonable
diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653 (internal quotations and
citations omitted).
Petitioner argues that he is entitled to equitable tolling on the basis that he was not aware
of his right to file a habeas petition, and his attorney did not advise him of his right to file a habeas
petition. (Doc. No. 11 at 2). “The Eighth Circuit has denied equitable tolling in cases of an
unrepresented petitioner alleging a lack of legal knowledge and resources.” Neil v. Farmington
Corr. Ctr., No. 1:23-CV-00191-AGF, 2024 WL 2867503, at *2 (E.D. Mo. May 8, 2024), appeal
dismissed, No. 25-1100, 2025 WL 2055751 (8th Cir. 2025) (collecting cases). “Prisoners are not
exempt from the principle that everyone is presumed to know the law and is subject to the law
whether or not he is actually aware of the particular law of which he has run afoul.” Baker v.
Norris, 321 F.3d 769, 772 (8th Cir. 2003); see also Neil, 2024 WL 2867503, at *2 (“Ignorance of
the law is not an extraordinary circumstance.). It is the responsibility of the Petitioner to diligently
pursue and investigate their postconviction cases. Rosa v. Weber, No. CIV. 10-4167, 2011 WL
1064077, at *4 (D.S.D. Mar. 21, 2011).
Even if the court were to consider equitable tolling on other grounds, Petitioner would still
not be entitled to it. Notably, Petitioner seemingly admits that he became aware of his ability to
file a § 2254 petition on or about February 25, 2025. (Doc. No. 2 at 8). Even assuming Petitioner
was uninformed about his ability to file a petition until February 25, 2025, he still would have been
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able to file within the one-year statute of limitations but did not do so. Equitable tolling requires
in part that a petitioner show they have been diligently pursuing their rights. Petitioner’s failure to
file his § 2254 petition within the one-year time frame after becoming aware of his ability to file a
petition demonstrates a lack of due diligence.
As to Petitioner’s contention that he is entitled to equitable tolling on the basis his attorney
did not advise him of his right to file a petition, such argument does not reach the level of an
extraordinary circumstance warranting equitable tolling. If a petitioner fails to present ineffective
assistance of counsel claims to the state court due to failure to timely file a postconviction petition,
such claims are defaulted. See Weekly v. Kelley, No. 5:14CV446 KGB-JTK, 2015 WL 7731600,
at *2 (E.D. Ark. May 22, 20215), report and recommendation adopted, No. 5:14-CV-00446-KGB,
2015 WL 7738013 (E.D. Ark. Nov. 30, 2015). Here, Petitioner did not appeal or request post-
conviction relief for his original judgment. Only after the conclusion of the probation revocation
proceedings did he appeal.
Also relevant here is the notion that an impediment to filing must be created by state action.
Finch v. Miller, 491 F.3d 424, 427 (8th Cir. 2007) (collecting cases). Petitioner argues he is entitled
to equitable tolling as counsel did not advise him of his right to file a petition. However, an
attorney’s failure to raise a claim in post-conviction proceedings cannot be a basis for procedural
default as there is no federal constitutional right to counsel in post-conviction proceedings. Atkins
v. Pringle, No. 3:22-CV-110, 2023 WL 11996933, at *12 (D.N.D. Mar. 14, 2023), report and
recommendation adopted, No. 3:22-CV-110, 2023 WL 11996933 (D.N.D. May 2, 2023); see Rosa
v. Weber, No. CIV. 10-4167, 2011 WL 1064077, at *5 (D.S.D. Mar. 21, 2011) (finding that an
alleged inability to access information from former counsel or the court is not enough to invoke
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equitable tolling). Because Petitioner has failed to show that any extraordinary circumstances
prevented him from timely filing his petition, he is not entitled to equitable tolling in this matter.
C. Failure to Exhaust
A petitioner is required to properly exhaust their administrative remedies before the federal
district court can consider their habeas corpus petition. See 28 U.S.C. § 2254(b)-(c); Rhines v.
Weber, 544 U.S. 269, 274 (2005); Middleton v. Roper, 455 F.3d 838, 855 (8th Cir. 2006); Dixon
v. Dormire, 263 F.3d 774, 777 (8th Cir. 2001). There are two prongs to proper exhaustion. First,
the claim must be “fairly presented,” which requires that the petitioner present both the factual and
legal premises for the claim, with the latter being satisfied if there is a reference to the particular
federal constitutional right or a citation to a state or federal case that raises the constitutional issue.
Duncan v. Henry, 513 U.S. 364, 365 (1995); Dansby v. Norris, 682 F.3d 711, 722-23 (8th Cir.
2012) (vacated on other grounds); Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007). Second,
the petitioner “must give the state courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State’s established appellate review process.” O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999).
Also relevant are three other aspects related to the exhaustion doctrine. First, the exhaustion
doctrine is satisfied if no state-court remedies are available and exhaustion would be futile. E.g.,
Armstrong v. Iowa, 418 F.3d 924, 926-27 (8th Cir. 2005). Second, pursuant to Rose v. Lundy, a
petitioner is prohibited from proceeding with a “mixed petition” of exhausted and unexhausted
claims. 455 U.S. 509 (1982). Finally, § 2254(b)(2) permits the court to deny a claim on the merits
notwithstanding a failure to exhaust. E.g., Gringas v. Weber, 543 F.3d 1001, 1003 (8th Cir. 2008).
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North Dakota Century Code § 29-32.1-01 prescribes the remedies available to a convicted
person under the Uniform Postconviction Procedure Act. Pursuant to this section, an individual
convicted of and sentenced for a crime may apply for relief on the following grounds:
a) 	The conviction was obtained or the sentence was imposed in violation of the
laws or the Constitution of the United States or of the laws or Constitution of
North Dakota;
b) 	The conviction was obtained under a statute that is in violation of the
Constitution of the United States or the Constitution of North Dakota, or that
the 	conduct 	for 	which 	the 	applicant 	was 	prosecuted 	is 	constitutionally
protected;
c) 	The court that rendered the judgment of conviction and sentence was without
jurisdiction over the person of the applicant or the subject matter;
d) 	The sentence is not authorized by the law;
e) 	Evidence, not previously presented and heard, exists requiring vacation of the
conviction or sentence in the interest of justice;
f) 	A significant change in substantive or procedural law has occurred which, in
the interest of justice, should be applied retrospectively;
g) 	The sentence has expired, probation or parole or conditional release was
unlawfully revoked, or the applicant is otherwise unlawfully in custody or
restrained; or
h) 	The conviction or sentence is otherwise subject to collateral attack upon any
ground of alleged error available before July 1, 1985, under any common law,
statutory or other writ, motion, proceeding, or remedy.
N.D.C.C. § 29.32.1-01(1)(a)-(h).2
It is clear from the record that Petitioner has failed to exhaust his state remedies. See
Carter-Stewart v. McBee, No. 4:24-CV-01159-MTS, 2024 WL 5007245, at *2 (E.D. Mo. Nov. 26,
2024) (“State remedies are ordinarily not considered exhausted if an individual may effectively
present his claim to the state courts by any currently available and adequate procedure.”). As to
the original criminal judgment, Petitioner neither filed a direct appeal to the North Dakota Supreme
Court or pursue available post-conviction remedies at the state level. Petitioner also has not
exhausted his state remedies as to the revocation proceedings. While Petitioner did file an appeal
2 This statute further provides that an application for post-conviction relief must be filed within two years of the date
on which the conviction becomes final, subject to exceptions that are not relevant here. See N.D.C.C. § 29-32.1-01(2)-
(3).
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to the North Dakota Supreme Court, and a mandate was issued on May 1, 2026, there is no
indication Petitioner has used the available post-conviction procedures established by statute or
filed an application for post-conviction relief prior to filing the habeas petition in this court.
Moreover, “in most cases, claims that have been procedurally defaulted at the state level are not
reviewable in federal court.” Freeman v. Bertsch, No. 1:06-CV-093, 2007 WL 1202839, at *3
(D.N.D. Apr. 23, 2007). Petitioner’s revocation appeal to the North Dakota Supreme Court was
dismissed on the basis he failed to follow the Rules of Appellate Procedure. Because Petitioner
has not exhausted his claims in state court using available state-court procedures before turning to
this court, and his appeal to the North Dakota Supreme Court essentially resulted in a procedural
default, his revocation matter is not reviewable by this court and he has failed to exhaust his state
remedies as to both the revocation matter and his original criminal judgment.
III. 	CONCLUSION
For the reasons articulated above, Respondent’s motion (Doc. No. 7) is GRANTED.
Petitioner’s motion for habeas corpus relief (Doc. No. 2) is DISMISSED.
Finally, the Court finds that any appeal would be frivolous, could not be taken in good
faith, and may not be taken in forma pauperis. The Court further will not issue a certificate of
appealability as dismissal of the petition is not debatable, reasonably subject to a different outcome
on appeal, or deserving of further proceedings. If Petitioner desires further review of the petition,
he may request the issuance of a certificate of appealability by a circuit judge of the Eighth Circuit
of Appeals in accordance with Tiedman v. Benson, 122 F.3d 518, 520-22 (8th Cir. 1997).
IT IS SO ORDERED.
Dated this 20th day of July, 2026.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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