• U.S. District Court of Delaware
  • D66278
  • Apr 24 2014 (Date Decided)


Page v. Pierce, DeFAX Case No. D66278 (D. Del. April 24, 2014) Andrews, J. (12 pages).

Application for writ of habeas corpus was time-barred where defendant waited more than four years to file his petition and no extraordinary circumstances existed to toll the time for filing. Habeas petition dismissed; certificate of appealability declined.

Page was convicted of three counts of first degree murder, attempted first degree murder, possession of a firearm during commission of a felony, second degree robbery, conspiracy and endangering the welfare of a child. In 2006, the superior court sentenced Page to three life sentences plus a term of years. On direct appeal, the supreme court affirmed Page's convictions and sentences.

Page subsequently filed three motions for post-conviction relief, one in October 2008, a second in March 2011, and another in March 2013. All were denied. In May 2013, Page filed an application for a writ of habeas corpus pursuant to 28 U.S.C. §2254.

The state argued that the court should deny the habeas petition as time-barred, or alternatively, as meritless and procedurally barred.

A one year statute of limitations applies for the filing of habeas petitions by state prisoners. 28 U.S.C. §2244(d)(1). The limitations period began to run when Page's conviction became final, which was 90 days after the state appellate court's decision where certiorari review had not been sought. The state supreme court had affirmed Page's convictions and sentence on Oct. 10, 2007, and he did not file a petition for a writ of certiorari. Therefore, Page's conviction became final on Jan. 8, 2008. Page did not file his habeas petition until more than four years after the expiration of the statute of limitations.

The court next considered whether statutory or equitable tolling applied to extend the limitations period. Pursuant to §2244(d)(2), a properly filed post-conviction motion tolls the statute of limitations during the time the post-conviction matter is pending in state court. The filing of Page's first post-conviction motion in 2008 tolled the limitations period through May 11, 2010, the date on which the state supreme court denied the motion. At that point, 274 of the limitations period had expired. The limitations clock resumed on May 12, 2010, and the remaining 91 passed until the limitations period expired on Aug. 11, 2010. Page's later post-conviction motions did not have any tolling effect because they were filed after the statute of limitations had already passed for the filing of a habeas petition.

Page argued he was entitled to equitable tolling because of ineffective assistance of counsel. Page asserted that his attorney misunderstood how statutory tolling affected the limitations period and therefore failed to timely file the habeas petition. An attorney's egregious error or neglect may constitute an extraordinary circumstance for equitable tolling. However, the court was not convinced that the erroneous computation by Page's attorney regarding the deadline was sufficiently egregious to warrant equitable tolling. Even if the attorney's actions were sufficient to justify tolling, such tolling would only be applicable through a reasonable period after August 2010.

The court found that Page understood by late August 2010, that his attorney was not going to be filing a habeas petition because he had withdrawn by that time. Although Page chose to file two pro se motions for post-conviction relief after that time, he did not file his habeas petition until more than two years later. Page offered no other justification for the delay and the court could not find one on the record. Because Page failed to demonstrate the necessary causal relationship between the alleged extraordinary circumstance of his attorney's actions and his late habeas filing, the court dismissed the petition as time-barred.

The court refused to issue a certificate of appealability because reasonable jurists would not find the conclusion debatable.