Thomas v. Sayler

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Allen Charles Thomas, 	)
)
Petitioner, 	) 	ORDER GRANTING RESPONDENT’S
) 	LIMITED MOTION TO DISMISS AND
vs. 	) 	DEEMING RESPONDENT’S MOTION
) 	EXTENSION OF TIME TO ANSWER
James Sayler, Warden, 	) 	MOOT
)
Respondent. 	) 	Case No. 1:22-cv-081
______________________________________________________________________________
Petitioner Allen Charles Thomas (“Thomas”) is an inmate at the North Dakota State
Penitentiary. 	He initiated the above captioned action in May 2022 with the submission of an
Application to Proceed In Forma Pauperis, which the court granted, and a Petition for Habeas
Corpus Relief Pursuant to 28 U.S.C. § 2254. Before the Court are Respondent’s Limited Motion
to Dismiss and a Motion for an Extension of Time to File An Answer. For the reasons that follow,
Respondent’s Limited Motion to Dismiss is granted , Respondent’s Motion for an Extension of Time
to File an Answer is deemed moot, and Thomas’s habeas petition is dismissed.
I. 	BACKGROUND
A. 	Underlying Criminal Proceedings
Thomas was charged in Kidder County District Court with 1 count of arson and 18 counts
of endangering by fire or explosion. (Doc. No. 8-1). At his trial in August 2013 the jury the found
him guilt of all counts. (Id.). On November 13, 2013, the Kidder County District Court entered a
criminal judgment sentencing him to 10 years imprisonment on the 1 count of arson and 2 years
imprisonment on each of the remaining 18 counts, with all sentences running consecutively. (Doc.
No. 8-2).
1
Case 1:22-cv-00081-CRH Document 17 Filed 09/06/22 Page 1 of 9

Thomas directly appealed the Kidder County District Court’s judgment to the North Dakota
Supreme Court, asserting there was insufficient evidence to sustain to the jury’s verdict. (Doc. Nos.
8-3, 8-4). On June 18, 2014, the North Dakota Supreme court issued a per curiam opinion affirming
the Kidder County District Court’s judgment. 	(Doc. No. 8-4). 	The 	mandate was issued on
September 12, 2014. (Doc. No. 8-3). Thomas did not petition the United States Supreme Court for
a writ of certiorari.
B. 	State Post-Conviction Proceedings
On November 24, 2014, Thomas filed an application for post-conviction relief with the
Kidder County District Court. (Doc. No. 8-5). On January 6, 2016, the Kidder County District
Court issued an memorandum opinion and order denying Thomas’s application. (Id.). It entered
final judgment on February 12, 2016. (Id.).
On February 19, 2016, Thomas filed an notice of appeal from the Kidder County District
Court’s order deny his application with the North Dakota Supreme Court. (Doc. No. 8-7). On July
6, 2016, the North Dakota Supreme Court issued an order dismissing Thomas’s appeal for failure
to proceed under the rules of appellate procedure. (Doc. No. 8-8). Its mandate issued on July 7,
2016. (Doc. No. 8-7),
On July 18, 2018, Thomas filed a second application for post-conviction relief with the
Kidder County District Court. (Doc. No. 8-9). On August 19, 2019, the Kidder County District
Court issued an order summarily dismissing the second application on the ground that Thomas was
seeking the same or similar relief to the relief sought in his first application. 	(Doc. No. 8-10).
Thomas did not appeal.
2
Case 1:22-cv-00081-CRH Document 17 Filed 09/06/22 Page 2 of 9

C. 	Petition for Habeas Corpus Relief Pursuant to 28 U.S.C. § 2254
Thomas lodged a habeas petition with this court on May 9, 2022. (Doc. No.1). He filed
an application to proceed in forma pauperis and a certificate of inmate account on May 19, 2022.
(Doc. No. 2). That same day the Clerk's office filed his habeas petition. (Doc. No. 3). The court
subsequently issued order granting Thomas’s application to proceed in forma pauperis and ordering
Respondent to answer. (Doc. Nos. 5,6).
On June 1, 2022, Respondent filed a Limited Motion to Dismiss and Motion for Extension
of Time to File Answer. (Doc. Nos. 7, 10). He requests that the court dismiss Thomas’s habeas
petition as untimely. Additionally, he requests additional time to file an answer to Thomas’s habeas
petition should the court deny his Limited Motion to Dismiss or take some other action.
On June 21, 2022, Thomas filed a motion requesting additional time to respond to
Respondent’s motions. 	(Doc. No. 13). 	The court granted Thomas’s request and extended his
deadline for responding to Respondent’s motions until August 26, 2022. (Doc. No. 15).
On September 6, 2022, Thomas filed a response to Respondent’s motions. (Doc. No. 16).
Therein he does not squarely address Respondent’s assertion that his habeas petition is untimely.
Rather, he asserts that he is a developmentally disabled adult with little education who as the victim
of an unfair trial due to ineffective assistance of counsel. He further asserts that he “was the victim
of ‘gross negligence’ as he was told numerous times by his attorney that his appeal was still pending
and open.” (Id.).
II. 	DISCUSSION
A. 	Statute of Limitations
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year statute
3
Case 1:22-cv-00081-CRH Document 17 Filed 09/06/22 Page 3 of 9

of limitations for filing federal habeas petitions. See 28 U.S.C. § 2244(d)(1). The limitation period
runs from the latest of:
(A) 	the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) 	the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) 	the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(D) 	the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D). Subsection (A) is applicable in this instance.
The running of the statute of limitations imposed by § 2244(d)(1)(A) is triggered by either:
(i) 	the conclusion of all direct criminal appeals in the state system, followed by
either the completion or denial of certiorari proceedings before the United
States Supreme Court; or
(ii) 	if certiorari was not sought, then by the conclusion of all direct criminal
appeals in the state system followed by the expiration of the time allotted for
filing a petition for the writ.
King v. Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012) (citing Gonzalez v. Thaler, 565 U.S 134, 149-
151 (2012)); Nichols v. Bowersox, 172 F.3d 1068, 1072 (8th Cir. 1999). The statute of limitations
may be tolled while a properly filed application for state post-conviction or other collateral review
is pending. 28 U.S.C. § 2244(d); see also Williams v. Bruton, 299 F.3d 981, 983 (8th Cir. 2002)
(discussing what constitutes a “pending” application for the purposes of 28 U.S.C. 2244(d)(2)). It
may also be tolled as a mater of equity. “A state postconviction action ‘remains pending’ for the
purpose of federal tolling ‘until the application has achieved final resolution through the State’s
4
Case 1:22-cv-00081-CRH Document 17 Filed 09/06/22 Page 4 of 9

postconviction procedures.’” Steen v. Schuetzle, 326 Fed. App'x 972, 973 (8th Cir. 2009) (quoting
Carey v. Saffold, 536 U.S. 214, 220 (2002)). A postconviction proceeding appealed to the North
Dakota Supreme Court remains pending until the Court issues its mandate. Steen, 326 Fed. App’x
at 974 (citing Finch v. Backes, 491 N.W.2d 705, 707 (N.D. 1992); N.D.C.C. § 28-05-10).
Respondent asserts that Thomas failed to file his petition within the one-year limitations
period established by AEDPA. His assertion is borne out by the record.
As noted above, the North Dakota Supreme Court issued its order affirming Thomas’s
conviction on June 18, 2014. 	As Thomas did not petition the United States Supreme Court for a
writ of certiorari, his conviction was final for purposes of AEDPA on or about September 16, 2014.
See § 2244(d)(1)(A)(ii); see also Sup. Ct. R. 13)(1) (requiring petitions for a writ of certiorari to be
filed within 90 days after entry of the judgment); Sup Ct. R. 13(3) (“The time to file a petition for
a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and
not from the issuance date of the mandate (or its equivalent under local practice).”).
AEDPA’s limitations period was tolled from November 24, 2014, the date on which Thomas
his filed first application for post-conviction relief with the Kidder County District Court, until on
July 6, 2016, the date on which the North Dakota Supreme Court issued its mandate disposing of
Thomas’s appeal from the Kidder County District Court’s order dismissing his application.
AEDPA’s limitations period began to run on July 7, 2016. More than two years passed until
Thomas filed his second application for post conviction relief with the Kidder County District Court.
More than five years passed until Thomas filed a habeas petition with this court. 	Thus, it
abundantly clear that Thomas file his habeas petition with this court outside of AEDPA’s one-year
limitations period.
5
Case 1:22-cv-00081-CRH Document 17 Filed 09/06/22 Page 5 of 9

B. 	Equitable Tolling
Equitable tolling can be available to save an untimely petition. Holland v. Florida, 560 U.S.
631, 645 (2010). However, it should be noted that equitable tolling is available only in very narrow
range of cases. Id. at 645 (2010); Deroo v. United States, 709 F.3d 1242, 1246 (8th Cir. 2013); see
also Cadet v. Fla. Dep't of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017) (“[E]quitable tolling is an
extraordinary remedy limited to rare and exceptional circumstances and typically applied
sparingly.”) (internal quotation marks omitted)). A petitioner claiming equitable tolling must show
“‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.” 	Holland , 560 U.S. 631, 645 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)); 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).
Thomas attributes the delay in filing the instant petition to his attorney’s gross negligence.
However, it is well settled that attorney negligence does not constitute the basis for equitable tolling,
particularly in the postconviction context where prisoners have no constitutional right to counsel.
See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (“Attorney miscalculation is simply not
sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners
have no constitutional right to counsel.”); Maples v. Thomas, 565 U.S. at 266 228 (“Negligence on
the part of a prisoner's postconviction attorney does not qualify as ‘cause’ [for excusing a procedural
default relating to a filing deadline].... because the attorney is the prisoner's agent, and under
6
Case 1:22-cv-00081-CRH Document 17 Filed 09/06/22 Page 6 of 9

well-settled principles of agency law, the principal bears the risk of negligent conduct on the part
of his agent.”) (citation and quotation marks omitted)); Coleman v. Thompson, 501 U.S. 722, 753
(1991) (“Attorney ignorance or inadvertence is not ‘cause’ [for excusing a procedural default
relating to a filing deadline] because the attorney is the petitioner's agent when acting, or failing to
act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error.”
(quotation marks omitted)); see also Beery v. Ault, 312 F.3d 948, 951 (8th Cir.2002) (“Ineffective
assistance of counsel generally does not warrant equitable tolling.”); see e.g., Merritt v. Blaine, 326
F.3d 157, 169 (3d Cir.2003)11 (applying general rule that "attorney error, miscalculation, inadequate
research, or other mistakes have not been found to rise to the‘extraordinary' circumstances required
for equitable tolling" (internal quotation marks omitted)); Fierro v. Cockrell, 294 F.3d 674, 683 (5th
Cir.2002) ("[C]ounsel's erroneous interpretation of the statute of limitations provision cannot, by
itself, excuse the failure to file [the] habeas petition in the district court within the one-year
limitations period."); Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir.2001) ("[A]ttorney error
[is] inadequate to create the ‘extraordinary' circumstances equitable tolling requires."); Frye v.
Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) ("We conclude that the miscalculation of the
limitations period by Frye's counsel and his negligence in general do not constitute extraordinary
circumstances sufficient to warrant equitable tolling."); Taliani v. Chrans, 189 F.3d 597, 598 (7th
Cir.1999) (holding that a lawyer's miscalculation of the limitation period was not a valid basis for
equitable tolling); Gilbert by Gilbert v. Sec. of Health & Human Servs., 51 F.3d 254, 257
(Fed.Cir.1995) ("The negligence of Gilbert's attorney does not justify applying equitable tolling.").
Consequently, any negligence attributed by Thomas to counsel does not constitute an extraordinary
circumstance and does not operate equitably toll the statute of limitations in this case.
Having reviewed the record, the court finds that Thomas has failed to demonstrate that he
7
Case 1:22-cv-00081-CRH Document 17 Filed 09/06/22 Page 7 of 9

pursued his rights diligently and that extraordinary circumstances prevented him from timely filing
his petition.
III. 	CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may only issue if the applicant
has made a substantial showing of the denial of a constitutional right. When the court has rejected
a petitioner’s claim on the merits, the substantial showing required is that the “petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” 	Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see also, U.S. v. Lambros, 404 F.3d 1034, 1036 -1037 (8 th
Circ. 2005); Garrett v. U.S., 211 F.3d 1075, 1076 -1077 (8th Cir. 2000). When the court denies a
petitioner’s claim on procedural grounds without reaching the merits, the petitioner must
demonstrate that reasonable jurists would find it debatable that a valid claim for the denial of
constitutional rights has been stated and that the district court was correct in its procedural ruling.
Slack, 529 U.S. at 484.
Based on the authority cited above, it is clear that Thomas has not met his burden with
respect to the issuance of a certificate of appealability. Reasonable jurists would not debate over
the correctness of this court’s dismissal of Thomas’s habeas petition as untimely.
IV. 	CONCLUSION
Respondent’s Limited Motion to Dismiss (Doc. No. 7) is GRANTED. Respondent's Motion
for Extension of Time to File Answer (Doc. No. 10) is deemed MOOT. Thomas’s habeas petition
(Doc. No. 3) is DISMISSED. No certificate of appealability shall be issued to Thomas.
8
Case 1:22-cv-00081-CRH Document 17 Filed 09/06/22 Page 8 of 9

IT IS SO ORDERED.
Dated this 6th day of September, 2022.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
9
Case 1:22-cv-00081-CRH Document 17 Filed 09/06/22 Page 9 of 9