1 Pursuant to 28 U.S.C. § 2244(d), as amended by the April 24, 1996, enactment of the

Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a one year statute of

limitation is applicable to a petition for writ of habeas corpus by a person in custody on a

judgment of a state court. 

IN THE UNITED STATES DISTRICT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHARLES CRENSHAW, :

Petitioner, :

vs. : CIVIL ACTION 05-0418-CG-B 

JERRY FERRELL. :

Respondent. :

ORDER

This matter is before the court on the Report and Recommendation of the Magistrate

Judge, dated September 9, 2005 (Doc.10), and plaintiff’s objection thereto (Doc. 11). After due

and proper consideration of all portions of this file deemed relevant to the issues raised, and a de

novo determination of those portions of the recommendation to which objection is made, the

court agrees with the recommendation of the Magistrate Judge that the case should be dismissed

as time barred pursuant to 28 U.S.C. § 2254(d).

The Magistrate Judge found that petitioner’s petition was filed after the one year statute

of limitations1 and that petitioner has presented no extraordinary circumstances that would

justify the out-of time adjudication of his petition. Petitioner asserts that the time period should

be equitably tolled because he is unlearned in the law and was depending on the assistance from

a law clerk provided by the Alabama Department of Corrections. Petitioner concedes that

ignorance of the law is not usually a factor that can warrant equitable tolling. However,

petitioner asserts that he has a fundamental constitutional right of access to the courts and that he

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is entitled to assistance in the preparation and filing of meaningful legal papers. Specifically,

petitioner contends that he is entitled to adequate law libraries or adequate assistance from

persons trained in the law and that since the Alabama Department of Corrections has adopted the

rule that law libraries will be staffed with persons trained in the law to assist person un-trained in

the law, they are responsible for his delay in filing. 

“Equitable tolling can be applied to prevent the application of the AEDPA's statutory

deadline when 'extraordinary circumstances' have worked to prevent an otherwise diligent

petitioner from timely filing his petition." Helton v. Sec'y for Dep't of Corr., 259 F.3d 1310, 1312

(11th Cir.2001). Equitable tolling is an extraordinary remedy that is typically applied sparingly;

however, "it is 'appropriate when a movant untimely files because of extraordinary

circumstances that are both beyond his control and unavoidable even with diligence.' " Drew v.

Dep't of Corr., 297 F.3d 1278, 1286 (11th Cir.2002) (quoting Sandvik v. United States, 177 F.3d

1269, 1271 (11th Cir.1999)), cert. denied, 537 U.S. 1237, 123 S.Ct. 1364 (2003). "The burden of

establishing entitlement to this extraordinary remedy plainly rests with the petitioner." Id. at

1286.

The court finds that the circumstances presented do not constitute "extraordinary

circumstances that are both beyond his control and unavoidable even with diligence.” Petitioner

has not demonstrated that the circumstances prevented him from timely filing his petition. 

“[N]either a plaintiff’s unfamiliarity with the legal process nor his lack of representation during

the applicable filing period merits equitable tolling.” Turner v. Johnson, 177 F.3d 390, 391-92

(5th Cir. 1999), cert denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed. 2d 389 (1999). The court

agrees with the Magistrate Judge’s finding that petitioner’s reliance on a law clerk who failed to

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file in a timely manner is insufficient to warrant equitable tolling. See Lawrence v. Florida, 421

F.3d 1221, 1226 (11th Cir. 2005) (citing Howell v. Crosby, 415 F.3d 1250, 1252 (11th

Cir.2005)(“[A]ttorney negligence is not a basis for equitable tolling, especially when the

petitioner cannot establish his own diligence in ascertaining the federal habeas filing deadline.”);

see also McLester v. Hopper, 67 F.Supp.2d 1308, 1311-1312 (M.D.Ala.,1999) (citing Justice v.

U.S.A., 6 F.3d 1474, 1480 (11th Cir. 1993))("[p]rinciples of equitable tolling...do not extend to

what is at best a garden variety claim of excusable neglect.”). “[I]n order to apply equitable

tolling, courts usually require some affirmative misconduct, such as deliberate concealment.”

Cabello v. Fernandez-Larios, 402 F.3d 1148, 1155 (11th Cir. 2005) (citation and internal

quotations omitted). “[E]quitable tolling is appropriate in situations where the defendant

misleads the plaintiff, allowing the statutory period to lapse; or when the plaintiff has no

reasonable way of discovering the wrong perpetrated against [him]...” Id. There has been no

evidence or even allegation of affirmative misconduct. The court finds that petitioner has not

met his burden of establishing that extraordinary circumstances warrant equitable tolling. 

CONCLUSION

After due and proper consideration of all portions of this file deemed relevant to the

issues raised, and a de novo determination of those portions of the Report and Recommendation

to which objection is made, the Report and Recommendation of the Magistrate Judge made

under 28 U.S.C. § 636(b)(1)(A) is ADOPTED as the opinion of this Court. It is ORDERED

that petitioner’s habeas corpus action be and is hereby DISMISSED as time barred pursuant to

28 U.S.C. § 2254(d).

DONE and ORDERED this 24th day of July, 2006. 

 /s/ Callie V. S. Granade

 CHIEF UNITED STATES DISTRICT JUDGE

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