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Poitra v. State of North Dakota

United States District Court, D. North Dakota, Southwestern Division

January 7, 2015

Joshua John Poitra, Petitioner,
v.
State of North Dakota, Respondent

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Joshua John Poitra, Petitioner, Pro se, Bismarck, ND.

For State of North Dakota, Respondent: Ken R. Sorenson, Attorney General's Office, Bismarck, ND.

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ORDER GRANTING MOTION TO DISMISS § 2254 PETITION

Charles S. Miller, Jr., Magistrate Judge.

Petitioner Joshua John Poitra is an inmate at the North Dakota State Penitentiary (" NDSP" ) in Bismarck, North Dakota. He has filed a " Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody." The State of North Dakota (" State" ) has filed a " Motion to Dismiss Section 2254 Petition." The parties have consented to the exercise of jurisdiction by the undersigned. For the reasons set forth below, the State's motion to dismiss is granted, and Poitra's habeas petition is dismissed with prejudice.

I. BACKGROUND

In July 2009, Poitra was convicted by a jury in state court in Cass County, North Dakota of one count of gross sexual imposition and one count of aggravated assault. (Doc. No. 8, Exs. 12; 16,¶ 11). On October 26, 2009, he was sentenced to 25 years imprisonment with 5 years suspended on the gross sexual imposition conviction and 5 years imprisonment on the aggravated assault conviction, with the sentences to run concurrent. (Doc. No. 8, Ex. 12). He appealed to the North Dakota Supreme Court. (Doc. No. 8, Ex. 13). On July 13, 2010, the North Dakota Supreme Court issued a decision affirming the criminal judgment. (Doc. No. 8, Ex. 16); State v. Poitra, 2010 ND 137, 785 N.W.2d 225. Poitra did not file a petition for a writ of certiorari in the United States Supreme Court.

On August 11, 2011, Poitra filed a pro se application for postconviction relief in the state district court. (Doc. No. 8, Exs. 17-18). On September 6, 2011, attorney Daniel Gast was appointed to represent Poitra in tat proceeding. (Doc. No. 8, Exs. 17; 22, p. 5). On May 25, 2012, the district court issued an order denying the application. (Doc. No. 8, Ex. 22). On June 29, 2012, Poitra filed a notice of appeal to the North Dakota Supreme Court. (Doc. No. 8, Ex. 17). On August 6, 2012, Gast was appointed to represent Poitra on his state postconviction appeal. (Id.). On January 23, 2013, the North Dakota Supreme Court issued a decision summarily affirming the denial of Poitra's application for postconviction relief. (Doc. No. 8, Ex. 28); Poitra v. State, 2013 ND 5, 828 N.W.2d 546 (per curiam). On February 25, 2013, the Court issued its mandate. (Doc. No. 8, Ex. 25).

On August 12, 2013, Poitra placed his federal habeas petition in the prison mailing system. (Doc. No. 2, p.14). The State has filed a motion to dismiss the petition on the grounds that Poitra's claims are time-barred and that, in any event, they have either been procedurally defaulted or are without merit.

II. WHETHER POITRA'S PETITION IS TIME-BARRED

A. Poitra failed to file his petition with the one-year limitations period

1. AEDPA's statute of limitations

Under the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), the one-year statute of limitations at 28 U.S.C. § 2244(d)(1)

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applies to a state prisoner's application for federal habeas corpus relief. Johnson v. Hobbs, 678 F.3d 607, 610 (8th Cir. 2012). In this case, pursuant to § 2244(d)(1)(A), the one-year period began to run on " the date on which the [state court] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[.]" See, e.g., Johnson, 678 F.3d at 610. " Review of a state criminal conviction by the United States Supreme Court is considered direct review of the conviction." King v. Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012) (quoting Smith v. Bowersox, 159 F.3d 345, 347 (8th Cir. 1998)). When the United States Supreme Court has jurisdiction to review the state court judgment and the petitioner does not seek such review, the state court judgment becomes final when the petitioner's time for requesting a writ of certiorari expires. Gonzalez v. Thaler, 132 S.Ct. 641, 653-54, 181 L.Ed.2d 619 (2012).

Section 2244(d)(2) provides for the tolling of the one-year statutory period for " [t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending[.]" See, e.g., Johnson, 678 F.3d at 610. The time between the conclusion of direct review of the state court judgment and the filing of an application for state post-conviction relief counts against the one-year period. Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001). " A state postconviction action 'remains pending' for the purpose of federal tolling 'until the application has achieved final resolution through the State's postconviction procedures.'" Steen v. Schuetzle, 326 F.App'x 972, 973 (8th Cir. 2009) (quoting Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002)). A postconviction proceeding appealed to the North Dakota Supreme Court remains pending until the Court issues its mandate. Steen, 326 F.App'x at 974 (citing Finch v. Backes, 491 N.W.2d 705, 707 (N.D. 1992); N.D.C.C. § 28-05-10).

A pro se prisoner's habeas petition is deemed filed on the date it is delivered to prison officials for mailing to the clerk of court. Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th Cir. 1999), abrogated on other grounds by Riddle v. Kemna, 523 F.3d 850 (8th Cir. 2008). Fed.R.Civ.P. 6(a) generally governs the calculation of AEDPA time limits. Wright v. Norris, 299 F.3d 926, 927 n.2 (8th Cir. 2002).

2. The one-year limitations period expired before Poitra filed his petition

Poitra's conviction was affirmed by the North Dakota court of last resort, and he did not file a petition for a writ of certiorari with the United States Supreme Court. Accordingly, his one-year period for filing a § 2254 petition began to run when his time for seeking review by the United States Supreme Court expired. Supreme Court Rule 13.1 provides that a petition for a writ of certiorari is timely when it is filed within 90 days of entry of the judgment by the state court of last resort. That time period does not include the day of the filing of the judgment. See Supreme Court Rule 30. It does include the last day of the period unless it is a Saturday, Sunday, or federal legal holiday, in which case the time period is extended to the next business day. Id.

The North Dakota Supreme Court's judgment affirming Poitra's criminal conviction was entered no later than July 15, 2010. From that date, Poitra's time for filing for certiorari expired on October 13, 2010, and his one-year period for filing a § 2254 petition began to run on or about

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that date.[1] Poitra's time for filing a § 2254 petition then ran for 303 days until it was tolled on August 11, 2011, by the filing in state district court of his application for postconviction relief. (Doc. No. 8, Exs. 17-18). The statutory period remained tolled until the North Dakota Supreme Court issued its mandate on February 25, 2013. (Doc. No. 8, Ex. 25). The sixty-two days remaining for Poitra to file his § 2254 petition would have expired on or about April 28, 2013, more than three months before his habeas petition was placed in the prison mailing system on August 12, 2013.

B. Equitable tolling

1. Law governing equitable tolling

The one-year AEDPA limitations period is subject to equitable tolling in a very narrow range of cases. Holland v. Florida, 560 U.S. 631, 645, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (" Holland" ); Deroo v. United States, 709 F.3d 1242, 1246 (8th Cir. 2013). 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. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)).

" 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). What may qualify as an " extraordinary circumstance" is discussed in more detail later. In short, however, when what is claimed is negligence or even gross negligence of counsel, it probably must amount to counsel having effectively abandoned the client to be an " extraordinary circumstance."

2. Factual information proffered by Poitra

To justify his late submission, Poitra asserts in his petition:

Although North Dakota Supreme Court affirmed my conviction January 23, 2013, I was not made aware of the honorable court's ruling until [July 1, 2013] when I'd [R]epeatedly written this Court Clerk's Office requesting the status of my appeal.
North Dakota law stipulates that the courts do [n]ot send copies of correspondence or documents to a defendant, but that said must be sent directly to an attorney of record. The problem being that the law firm handling my appeal no longer employed my attorney of record. Thus my repeated attempts at receiving notification of the status of my appeal, were [n]ot answered until July 1, 2013, when the Clerk's Office of the North Dakota Supreme Court notified me themselves.

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(Doc. No. 2, p.13) (brackets and errors in original; citations to Exhibits omitted). Poitra also submits a number of letters to support his argument.

One is a letter written by Poitra to the Clerk of the North Dakota Supreme Court dated August 10, 2012, which reads:

Appellant Joshua Poitra, pro-se respectfully requests the Honorable Court for an extension of time to file and do his appeal brief. As I am still waiting for a response back from the District Court concerning the application to appoint an attorney to me for my appeal to you the Supreme Court. I don't know what to do and sure could use the help from a public defender with my issues regarding the appeal brief and appendix.
Wherefore, Joshua Poitra pro-se to Case No. 20120283 respectfully asks this court to grant the extension of time so that he can produce or do the appeal brief with you the Supreme Court.
dated this 10 day of August, 2012.
/s/
Joshua Poitra; pro-se
Box 5521
Bismarck, N.D. 58506

(Doc. No. 22-1, p. 2). Another is the response by the Clerk of North Dakota Supreme Court dated August 13, 2012, addressed to both Poitra and Gast, which states:

We recently received notice of Mr. Gast's appointment as counsel for Mr. Poitra in this matter. It appears the appointment was made August 6.
I note that the Appellant's Brief and Appendix are due September 2, 2012. I further note that today Mr. Poitra requested an extension of time to file the brief in this matter because he is waiting for notification of the appointment of counsel from the district court. In light of the fact that Mr. Gast has been counsel of record in this matter since August 6, and we generally do not accept filings from represented individuals, no action is being taken on Mr. Poitra's request. If Mr. Gast needs additional time for brief preparation, he will need to be [sic] make such a motion to this Court.
Sincerely yours,
/s/
Penny Miller
Clerk
North Dakota Supreme Court

(Doc. No. 22-1, p. 4).

The next was a letter written by Poitra to the Clerk of North Dakota Supreme Court and attorney Gast dated September 7, 2012, stating:

To whom it may concern:
I don't know what's going on? My appeal brief in the above matter was due by September 2nd 2012 and neither of you the Supreme Court and or you my court appointed attorney have not sent me anything so far. I will note that I did put in a motion for an extension of time with you the Supreme Court but my request was turned down. And instead I was told that my appellant attorney was going to be the same individual who did my postconviction for me with the District Court that got denied anyways. Why?
My above named public defender is clearly ineffective on my behalf because he was not informed me with any kind of issues and or without any kind of ideas as to what we are going to address and bring before the Supreme Court. As a matter of fact when I did call his office last week for the first time, I was told by his clerk that they had no knowledge that he had been appointed as my attorney for my appeal. What's going on?
Well I'm asking for a continuance or something because this just isn't fair

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that something like this can be happening within my appeal process. I have never heard anything from my attorney yet and maybe he just doesn't care either way but I do know that I do have rights for an honest representation. Please let me know what's going on and or if my appeal is still okay.
Thank you.

(Doc. No. 2-3, p. 4) (errors in original). This letter was followed by a reply by the Clerk of the North Dakota Supreme Court to both Poitra and Gast dated September 12, 2012, which reads:

Mr. Poitra recently made an inquiry into the status of his appeal. This is to advise him, that at Mr. Gast's request the due date for the Appellant's brief and appendix was extended to October 4, 2012.
I must reiterate to Mr. Poitra that when there is an attorney of record we do not send copies of correspondence or documents during the pendency of an appeal to the represented party, nor we will [sic] interject ourselves into the attorney-client relationship. It is best that Mr. Poitra address his concerns in a letter sent to Mr. Gast, as this Court does not appoint the attorneys.
Sincerely yours,
/s/
Penny Miller
Clerk
North Dakota Supreme Court

(Doc. No. 2-3, p. 2).

Poitra also submits two letters addressed to him that presumably are responses to his requests for information about his appeal. One is a letter dated July 1, 2013, from the District Court for the East ...


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