claim of excusable neglect’”). Petitioner does not qualify for equitable tolling. While he
arguably has been pursuing post-conviction relief diligently, he does not demonstrate the
existence of an extraordinary circumstance which prevented him from filing a timely § 2254
motion. In any event, petitioner clarifies that he “is not requesting an extension of the time
statutorily prescribed by equitable tolling.” Pet’r’s Reply § 44. Rather, he “seeks an equitable
exception to § 2244(d)(1) by invoking the miscarriage of justice exception,” id. | 44, which
overcomes any procedural default, see id. { 47.

Petitioner asserts his actual innocence of the crime for which he has been convicted.
“[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether
the impediment is a procedural bar [such as the] expiration of the statute of limitations.”
McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). The Supreme Court instructs that “[t]he
miscarriage of justice exception . . . applies to a severely confined category: cases in which new
evidence shows it is more likely than not that no reasonable juror would have convicted the
petitioner.” /d. at 1933 (citation, brackets and internal quotation marks omitted). Based on the
Court’s review of petitioner’s submissions, he identifies no new facts or evidence which might
call the jury’s guilty verdict into question.? Furthermore, petitioner may bring an actual
innocence claim by motion under D.C. Code § 23-110 in the Superior Court, see Ibrahim v.
United States, 661 F.3d 1141 (D.C. Cir. 2011), and the availability of this local remedy
forecloses petitioner’s opportunity to have his claim adjudicated in federal court, see Blair-Bey v.
Quick, 151 F.3d 1036, 1042 (D.C. Cir. 1998). Even if petitioner had filed a timely § 2254

petition, this Court is without jurisdiction to entertain his actual innocence claim. See Earle v.

United States, 987 F. Supp. 2d 7, 11 (D.D.C. 2013).

? For example, he mentions serology test results from 1993, see Pet’r’s Reply ] 46 & Ex. A, which presumably
would have been available to him at trial.


Supreme Court of the United States. However, he did file a post-conviction motion on March
13, 1998 in the Superior Court under D.C. Code § 23-110, The Superior Court denied his
motion on September 30, 1999, and the District of Columbia Court of Appeals affirmed the
decision on April 20, 2001. Petitioner filed the instant petition on October 16, 2015.!

It appears that petitioner’s conviction became final on or about May 26, 1998, or 90
days after the District of Columbia Court of Appeals issued its mandate. It further appears that
the one-year limitation period for the filing of a petition under § 2254 did not begin to run when
the conviction became final because, under 28 U.S.C. § 2244(d)(2), the limitation period was
tolled pending resolution of petitioner’s § 23-110 motion. In other words, the limitations period
would not have run from March 13, 1998, when petitioner filed his § 23-110 motion in the
Superior Court, through April 30, 2001, when the District of Columbia Court of Appeals
affirmed the Superior Court’s decision. Respondent asserts that the limitation period ended one
year later, on April 30, 2002, such that the filing of the instant petition in 2015 is fourteen years
too late. See U.S. Opp’n at 8.

Because the limitation period is not jurisdictional, it “is subject to equitable tolling,”
Holland y. Florida, 560 U.S. 631, 645 (2010), where the movant demonstrates “(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing,” id. at 649 (citation and internal quotation marks omitted); see
Norman vy. United States, 467 F.3d 773, 775 (D.C. Cir. 2006) (citing /rwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990)) (finding that equitable tolling is denied “where a [petitioner]

‘failed to exercise due diligence in preserving his legal rights’ or showed only ‘a garden variety

! The Clerk of Court received petitioner’s petition on October 16, 2015. The Court subsequently granted
petitioner’s application for leave to proceed in forma pauperis, and the Clerk officially entered the petition and
application on the docket on December I, 2015. The Court treats the petition as if it were filed on October 16, 2015.

4


The Court concludes that the petition is time-barred and therefore it must be denied. An

Order is issued separately.

t

RICHA LEON
United States District Judge



UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
ARI BAILEY, )
)
Petitioner, )
)
v. ) Civil Action No. 15-2072 (RJL)
)
DAVID EBBERT, et al., )
FILED
Respondents. ) NOV 2 2 2016
)
Clerk, U.S. District & Ban!
Sourts for the District of Columbia
MEMORANDUM OPINION

yy SO
November LZ) x 16

This matter is before the Court on petitioner’s “Petition for Writ of Habeas Corpus
Pursuant to 28 USC § 1651(a); 28 USC § 2254(a),” ECF No. 1, the United States’ Opposition to
Petitioner’s Pro Se “Petition for Writ of Habeas Corpus Pursuant to 28 USC § 1651(a); 28 USC
§ 2254(a),” ECF No. 12, and “Petitioner’s Reply Pursuant to Rule S(e) of Rules Governing §
2254 Cases,” ECF No. 26. For the reasons discussed below, the Court will deny the petition as

untimely,

The Court construes the petition as one filed under 28 U.S.C. § 2254, and the sole claim
this Court may entertain is Count II, see Pet. § 132, ineffective assistance of appellate counsel,
see Williams v. Martinez, 586 F.3d 995, 998-1001 (D.C. Cir. 2009). In relevant part, § 2254

provides:


An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C. § 2254(d). A federal court does not grant a habeas petition to a state prisoner unless it

appears that:

(A) the applicant has exhausted the remedies available in the courts
of the State; or

(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to
protect the rights of the applicant.
Id. § 2254(b)(1). An individual convicted in and sentenced by the Superior Court of the District

of Columbia is considered a state prisoner for purposes of § 2254. See Smith v, United States,

No. 00-5181, 2000 WL 1279276, at *1 (D.C. Cir. Aug. 23, 2000) (per curiam).

“Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) .
. .impose[d] a 1-year period of limitation on motions brought under [28 U.S.C. § 2255],” United
States v. Saro, 252 F.3d 449, 451 (D.C. Cir. 2001) (citation omitted), and “[c]ourts have
generally applied the same analysis to the time limitations in § 2254,” United States v. Cicero,
214 F.3d 199, 203 n.* (D.C. Cir. 2000) (citations omitted). The limitation period for the filing of
a petition under § 2254 is set forth in § 2244. See Wright v. Wilson, 930 F. Supp. 2d 7, 9 (D.D.C.

2013). It runs from the latter of four possible dates:


(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). The limitation period is tolled while “a properly filed application for
State post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending.” /d. § 2244(d)(2). Review is pending “until the application has achieved final
resolution through the State’s post-conviction procedures,” Carey v. Saffold, 536 U.S. 214, 220
(2002), including any appeals in the state courts. A criminal conviction becomes final when the
Supreme Court “affirms a conviction on the merits on direct review or denies a petition for a writ
of certiorari, or when the time for filing a certiorari petition expires.” Clay v. United States, 537
U.S. 522, 527 (2003); see S. Ct. R. 13(1) (setting 90-day deadline for filing a petition for writ of

certiorari).

Petitioner was convicted of rape in 1994, and the Superior Court imposed a sentence of
15 to 45 years’ imprisonment. The District of Columbia Court of Appeals affirmed petitioner’s
conviction on April 14, 1997, denied his petition for rehearing on February 17, 1998, and issued

its mandate on February 25, 1998. Petitioner did not file a petition for a writ of certiorari in the