6
Case 8:07-cv-01331-SCB-MAP Document 6 Filed 08/10/2007 Page 1 of 5
Petitioner,
S E CRET A RY, DE P A R T M E NT OF
CORRECTIONS,
Respondent.
_____________________________________/
ORDER
This cause is before the Court on William Gene Mahood's construed Rule 59(e)
motion for reconsideration of the denial of his petition as time-barred. (Doc. No. 5).
BACKGROUND
The Court summarily denied Mahood's petition for the writ of habeas corpus
Dockets.Justia.com
Case 8:07-cv-01331-SCB-MAP Document 6 Filed 08/10/2007 Page 2 of 5
contends that he is entitled to equitable tolling until November 2005 and that he had a year
from November 2005 to submit his Rule 3.850 motion in state court and/or his federal
habeas corpus petition. He claims that, under 28 U.S.C. § 2244(d)(1)(C), the state created
an impediment to his filing his collateral attack in state court and/or his federal petition
because he was incarcerated out of state until November 2005 and did not have access
ignorance of the law “is not a factor that can warrant equitable tolling.”
Wakefield v. Railroad Retirement Board, 131 F.3d 967, 969 (11th Cir.1997);
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.2000), cert. denied, 531 U.S.
1194, 121 S.Ct. 1195, 149 L.Ed.2d 110 (2001). (“[I]t is well established that
ignorance of the law, even for an incarcerated pro se petitioner, generally
does not excuse prompt filing.”). Moreover, neither an alleged inadequate
prison law library nor limited access thereto establishes extraordinary
circumstances warranting an equitable tolling of the limitation period. Felder
v. Johnson, 204 F.3d 168 (11 Cir.2000); see also Marsh, 223 F.3d at 1220.
-2-
Case 8:07-cv-01331-SCB-MAP Document 6 Filed 08/10/2007 Page 3 of 5
trigger the later commencement date for the one year period, Petitioner must
demonstrate both actual harm or injury- i.e., that he was actually prevented
from exercising his right of access to courts to attack his sentence or
conditions of confinement- and that the impediment was unconstitutional
because not “reasonably related to legitimate penological interests .” 204
F.3d at 1090, quoting Lewis v. Casey, 518 U.S. 343, 361, 116 S.Ct. 2174,
135 L.Ed.2d 606 (1996) (other citations omitted).
....
It was not enough to say that the library “lacked all relevant statutes
and case law or that the procedure to request specific materials was
inadequate.” Id., quoting Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998).
....
-3-
Case 8:07-cv-01331-SCB-MAP Document 6 Filed 08/10/2007 Page 4 of 5
Relying on Helton, the court in Arthur said that “[t]o show diligence, a
petitioner claiming deficiencies in the prison library must provide details of the
specific actions taken toward filing the petition.” 452 F.3d at 1253 ( citing
Helton ). Petitioner must show efforts to determine the limitations period and
how the prison “thwarted his efforts.” Id., quoting Helton.
Mahood has not provided details of the specific actions he took toward timely filing
his petition; he has not shown what efforts he took to determine the limitations period; and
he has not shown how the prison "thwarted his efforts." Therefore, he has not shown that
he exercised due diligence and has not demonstrated that he is entitled to equitable tolling.
That Mahood's construed Rule 59(e) motion reconsideration (Doc. No. 5) is denied.
appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court
must first issue a certificate of appealability (COA). Id. “A [COA] may issue AAA only if the
applicant has made a substantial showing of the denial of a constitutional right.” Id. at §
2253(c)(2). To make such a showing, petitioner “must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims debatable or wrong,”
Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)), or that “the issues presented were ‘adequate to deserve encouragement to
proceed further, ’ " Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v.
-4-
Case 8:07-cv-01331-SCB-MAP Document 6 Filed 08/10/2007 Page 5 of 5
Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in
these circumstances.
entitled to appeal the denial of the Rule 59(e) motion in forma pauperis.
-5-