Petition for Writ of Certiorari — William Lee Boyer, Petitioner v. Amy Robey, Warden, et al.

Supreme Court briefApr 5, 2024

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23-5655

:ii

Mr. William Lee Boyer

#260673

Luther Luckett Correctional Complex

P.O. Box 6

LaGrange, KY 40031

!)

No. 23-5655

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Jan 9, 2024

WILLIAM LEE BOYER,

Petitioner-Appellant,

v.

AMY ROBEY, Warden; DANIEL J. CAMERON,

Attorney General,

Respondents-Appellees.

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KELLY L. STEPHENS, Clerk

ORDER

Before: BOGGS, Circuit Judge.

William Lee Boyer, a Kentucky prisoner proceeding pro se, appeals the district court’s

order dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254 as untimely.

Boyer moves this court for a certificate of appealability and for leave to proceed in forma pauperis

on appeal. See Fed. R. App. P. 22(b), 24(a)(5).

After shooting and killing his ex-wife, Boyer pleaded guiky to murder in exchange for the

dismissal of other charges. On April 30, 2013, the Warren Circuit Court entered its judgment

sentencing Boyer to life imprisonment with the possibility of parole after 20 years. In accordance

with his plea agreement, Boyer did not file a direct appeal.

Three years later, in May 2016, Boyer filed a motion to vacate, set aside, or correct his

sentence under Kentucky Rule of Criminal Procedure 11.42, claiming ineffective assistance of

counsel. After an evidentiary hearing, the trial court denied Boyer’s Rule 11.42 motion. Boyer

appealed, and the Kentucky Court of Appeals affirmed, concluding that his Rule 11.42 motion was

untimely and was otherwise properly denied. Boyer v. Commonwealth, No. 2019-CA-0331-MR,

2021 WL 298405 (Ky. Ct. App. Jan. 29, 2021), disc. rev. denied, No. 2021-SC-008 l'-D (Ky. June

9, 2021).

No. 23-5655

-2-

Boyer filed a § 2254 habeas petition in May 2022. In the court-provided form, Boyer raised

the same ineffective-assistance claims that he raised in his Rule 11.42 motion: (1) his trial counsel

failed to fully investigate evidence of his extreme emotional disturbance (EED) at the time of the

offense and failed to inform him of this evidence before he entered into the plea agreement. (2) his

trial counsel failed to pursue suppression of his confession, and (3) his trial counsel failed to fully

investigate the ballistics evidence. Boyer’s memorandum of law in support of his habeas petition

addressed different issues-about his post-conviction counsel’s ineffectiveness and other alleged

errors in the Rule 11.42 proceeding.

The district court ordered Boyer to show cause why his habeas petition should not be

dismissed as untimely.

In response, Boyer asserted that his post-conviction counsel’s

ineffectiveness served as “cause-’ for his procedural default. The district court directed service and

allowed the respondent to limit her answer to the timeliness issue. In the meantime, Boyer filed

multiple motions for leave to amend and supplement his habeas petition, which the magistrate

judge granted. The magistrate judge recommended that the district court dismiss Boyer’s habeas

petition as time-barred and decline to issue a certificate of appealability. Over Boyer’s objections,

the district court adopted the magistrate judge’s findings of fact, conclusions of law, and

recommendation and dismissed :he habeas petition. This timely appeal followed.

Boyer moves this court for a certificate of appealability.

To obtain a certificate of

appealability, a petitioner must make “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). Where, as here, the district court dismisses a habeas petition on procedural

grounds without addressing the underlying constitutional claims, a certificate of appealability

should issue if the petitioner “shows, at least, that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).

In his motion for a certificate of

appealability, Boyer acknowledges that his petition was dismissed on “procedural grounds,” but

No. 23-5655

-3 he does not address the timeJness issue. In any event, reasonable jurists could not debate the

district court s conclusion that Boyer’s habeas petition was untimely.

The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-year

limitations period for habeas petitions challenging state-court judgments. 28 U.S.C. § 2244(d)(1).

The one-year period typically runs from “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.”

Id.

§ 2244(d)(1)(A). Because Boyer did not file a direct appeal, the Warren Circuit Court’s judgment

became final 30 days after its entry—on May 30,2013. See Ky. R. Crim. P. 12.04(3); Ky. R. App.

P. 3(A)(1). The one-year period for filing a habeas petition therefore expired on May 30, 2014.

AEDPA s limitations period is tolled 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.” 28 U.S.C. § 2244(d)(2). But Boyer’s Rule 11.42 motion filed in May 2016 did not

revive the already expired limitations period. See Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir.

2003).

AEDPA’s one-year limitations period also runs from “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)(D). Boyer argued that new evidence supported his claim that

his trial counsel failed to fully investigate and advise him about an EED defense. Boyer asserted

that, after nearly two years of reviewing the trial record and conducting research, he wrote Dr. Eric

Drogin, the clinical and forensic psychologist who evaluated him during the trial proceeding, to

request the report from his evaluation. According to Boyer, Dr. Drogin’s letters in response

confirmed that “he was indeed suffering from EED” at the time of the offense and that his trial

counsel “failed to communicate” this fact to him and failed to request the preparation of an

evaluation report. Boyer asserted that Dr. Drogin’s letters constituted new evidence proving that,

once he was found to have suffered from EED, his trial counsel failed to fully investigate EED as

a defense and failed to provide him with the results of the evaluation.

No. 23-5655

-4-

But Boyer was aware of the facts supporting his ineffective-assistance claim before he

received Dr. Drogin’s letters: he admittedly “knew his rights were violated long before he could

prove it. Dr. Drogin evaluated Boyer at the request of his trial counsel, who subsequently filed a

notice of intent to introduce Dr. Drogin’s expert testimony that Boyer was suffering from EED at

the time of the offense. According to his Rule 11.42 motion, Beyer took a plea deal because his

trial counsel advised him that a jury would not understand his EED defense, leading Boyer to

believe that the presentation of an EED defense at trial would be unsuccessful. Even if Boyer did

not learn about his trial counsel’s failure to request the preparation of an evaluation report until he

received Dr. Drogin’s letters, he was aware of the facts supporting his ineffective-assistance

claim the availability of an EED defense and his trial counsel’s advice about that defense—at

the time of his guilty plea. Furthermore, Boyer failed to exercise due diligence given that he waited

nearly three years after his conviction to contact Dr. Drogin. Boyer therefore failed to satisfy

§ 2244(d)(1)(D).

AEDPA’s limitations period “is subject to equitable tolling in appropriate cases.” Holland

v. Florida, 560 U.S. 631, 645 (2010). “Generally, a litigant seeking equitable tolling bears the

burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way.” Pace v. Diguglielmo, 544 U.S. 408, 418

(2005).

Equitable tolling is granted sparingly and is evaluated on a case-by-case basis, with the

petitioner retaining the ‘ultimate burden of persuading the court that he or she is entitled to

equitable tolling.’” Keeling v. Warden, Lebanon Corr. Inst., 611 F.3d 452, 462 (6th Cir. 2012)

(quoting Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011)).

Boyer failed to establish diligence given his three-year delay in filing a Rule 11.42 motion,

even though he “knew his rights were violated long before.” Nor did Boyer identify any

extraordinary circumstance standing in his way. Nothing prevented Boyer from contacting Dr.

Drogin earlier.

And Boyer s pro se status and lack of legal knowledge did not constitute

extraordinary circumstances. See id. at 464.

No. 23-5655

-5A credible claim of actual innocence may overcome AEDPA’s one-year limitations period.

McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013). ‘“[AJctual innocence’ means factual

innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).

Although Boyer cited Perkins, he did not assert his factual innocence.

Boyer argued that his post-conviction counsel’s ineffectiveness established cause for his

procedural default, citing Martinez v. Ryan, 566 U.S. 1, 9 (2012), and Trevino v. Thaler, 569 U.S.

!

413, 429 (2013). But those cases involved the procedural default of a habeas claim by failing to

raise it in state court

not a habeas petition barred by AEDPA’s one-year limitations period. In

any event, Boyer cannot blame his untimely filing on his post-conviction counsel, who was

appointed long after the deadline for filing his habeas petition had passed.

Reasonable jurists could not debate the district court’s conclusion that Boyer’s habeas

petition was untimely. Accordingly, we DENY Boyer’s motion for a certificate of appealability

and DENY as moot his motion for leave to proceed in forma pauperis on appeal.

ENTERED BY ORDER OF THE COURT

!

United States Court of Appeals for the Sixth Circuit

U.S. Mail Notice of Docket Activity

The following transaction was filed on 01/09/2024.

Case Name: William Boyer v. Amy Robey, et al

Case Number: 23-5655

Docket Text:

ORDER filed: Accordingly, we DENY Boyer’s motion for a certificate of appealability and

DENY as moot his motion for leave to proceed in forma pauperis on appeal [7082650-2]

[7039678-2], Danny J. Boggs, Circuit Judge.

The following documents(s) are associated with this transaction:

Document Description: Order

Notice will be sent to:

Mr. William Lee Boyer

Luther Luckett Correctional Complex

P.O. Box 6

LaGrange, KY 40031

A copy of this notice will be issued to:

Mr. Joseph Andrew Beckett

Mr. James J. Vilt Jr.

*

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Jan 9, 2024

KELLY L. STEPHENS, Clerk

No. 23-5655

WILLIAM LEE BOYER,

Petitioner-Appellant,

v.

AMY ROBEY, Warden; DANIEL J. CAMERON,

Attorney General,

Respondents-Appellees.

Before: BOGGS, Circuit Judge.

JUDGMENT

THIS MATTER came before the court upon the application by William Lee Boyer for a

/

certificate of appealability.

UPON FULL REVIEW of the record and any submissions by the parties,

IT IS ORDERED that the application for a certificate of appealability is DENIED.

ENTERED BY ORDER OF THE COURT

Kelly L. Stephens, Clerk

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Case l:22-cv-00061-JHM-HBB Document 21 Filed 05/16/23 Page 1 of 12 PageiD #: 472

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

BOWLING GREEN DIVISION

CIVIL ACTION NO. 1:22-CV-00061-JHM-HBB

WILLIAM L. BOYER

PETITIONER

VS.

AMY ROBEY, WARDEN, et al.

RESPONDENTS

FINDINGS OF FACT, CONCLUSIONS OF LAW

AND RECOMMENDATION

Before the Court is Petitioner William L. Boyer’s petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 (DN 1). Respondent Amy Robey filed a response limited to the issue

of whether the petition is time barred (DN 18). Boyer has filed a reply (DN 19). The District

Judge referred this matter to the undersigned magistrate judge for findings of fact and

recommendations (DN 8). For the reasons that follow, the undersigned RECOMMENDS that the

Court DISMISS Boyer’s petition as time barred.

FINDINGS OF FACT & CONCLUSIONS OF LAW

Statute of Limitations

A one-year statute of limitations applies to the § 2254 petition filed by Boyer (DN 1). 28

U.S.C. § 2244(d)(1). The statute of limitations reads as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgnient of a State court. The

limitation period shall run from the latest of —

(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 act ion

in violation of the Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;

Case l:22-cv-00061-JHM-HBB Document 21 Filed 05/16/23 Page 2 of 12 PagelD #: 473

(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). Boyer’s one-year period of limitation for filing his § 2254 petition began to

run on the date his judgment became final by the expiration of the time for seeking direct review.

See 28 U.S.C. § 2244(d)(1)(A): Gonzalez v. Thaler. 565 U.S. 134, 150 (2012): Keeling v. Warden.

Lebanon Corr, Inst,. 673 F.3d 452, 460-61 (2012).

Boyer entered a plea of guilty to the murder of his wife on March 20, 2012. Boyer v.'

Commonwealth. No. 2019-CA-0331-MR, 2021 Ky. App. Unpub. LEXIS 65, at *2-3 (Ky. Ct. App.

Jan. 29. 2021). Boyer was sentenced to serve life in prison with the eligibility for parole after

twenty years, [d. at *3. The trial court’s judgment and sentence were entered on April 30, 2013.

Following RCr 12.04, Boyer had thirty days from the entry of the judgment to file his appeal.

However, Boyer did not file an appeal to the Supreme Court of Kentucky, as he waived any statecourt direct appeal from his conviction as a condition of his plea agreement (DN 18 PagelD # 362).

Therefore, the start of Boyer’s one-year period of limitations began to run on Thursday, May 30,

2013. Boyer’s one-year limitations period expired on Friday, May 30, 2014.

Certain post-conviction proceedings in the state court can toll the one-year limitation

period. See McClendon v. Sherman. 329 F.3d 490, 493 (6th Cir. 2003). "The 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 shall not be counted toward any period of limitation[.]” 42

U.S.C.

2244(d)(2). Critically, the tolling provision of § 2244(d)(2) does not serve to resuscitate

2

Case l:22-cv-00061-JHM-HBB Document 21 Filed 05/16/23 Page 3 of 12 PagelD #: 474

the “the limitations period (i.e.. restart the clock at zero); it can only serve to pause a clock that has

not yet fully run.” Vroman v. Brigano. 346 F.3d 598, 602 (6th Cir. 2003) (citation omitted).

Boyer filed his RCr 11.42 motion on May 4, 2016, almost two years after his one-year

limitations period under § 2244(d)(1)(A) expired on Friday, May 30, 2014. Boyer. 2021 Ky. App.

Unpub. LEXIS 65, at *3. Thus, Boyer’s RCr 11.42 motion does not provide any relief as to his

one-year period of limitation as it already had expired. This means that when Boyer filed his

habeas petition on May 25. 2022 (DN 1). it was time barred because he filed it 2917 days after the one-year limitations period under § 2244(d)(1)(A) expired on May 30, 2014. As discussed in a

later section, Boyer’s statute of limitations did not begin to run following the discovery of.new

evidence under § 2244(d)(1)(D).

I.

ARGUMENTS OF THE PARTIES

.

Boyer argues equitable tolling should apply to his petition despite filing his federal petition

★

outside the one-year statute of limitations. Within his petition, Boyer argues his petition is not

time barred due to his claim of ineffective assistance counsel during the “initial-review collateral

proceedings,” citing Martinez v. Ryan, 566 U.S. 1 (2012) (DN 1 PagelD # 13-14). The standard

underMartinez. however, controls a petitioner’s ability to raise a claim that was not exhausted

before the state court post-conviction proceedings, an equitable exemption to a procedural default

*

standard, not an equitable tolling standard. Within his Petition and his memorandum in support.

Boyer does not articulate how he was pursuing his rights diligently or the presence of extraordinary

circumstances, but instead alleges that his trial counsel failed to develop his extreme emotional

disturbance (“EED”) defense and focuses on his post-conviction counsel’s refusal to raise an EED

defense by calling an expert witness and other evidence (DN I, DN 1-1). Robey argues in her

3

A

Case l:22-cv-Q0061-JHM-HBB Document 21 Filed 05/16/23 Page 4 of 12 PagelD #: 475

Response that as Boyer’s federal petition was filed eight years after the limitations period expired

it is time barred and not saved by equitable tolling (DN 18 PagelD # 364-65).

In both his Petition and Reply, Boyer relies on Martinez and asserts that he was diligent by

making the argument the Kentucky Court of Appeals erred by finding his RCr. 11.42 was time

barred and that his counsel provided inadequate legal assistance (DN 19 PagelD #448-49). To the

issue of timeliness, Boyer’s Reply argues that he received ineffective assistance of counsel

regarding his EED defense by his post-conviction proceeding counsel with:

Petitioner had no “evidence” to base his claim, in tandem with no starting point to

research until finally receiving his records which he was diligently pursuing from

the moment he became truly aware of the violation. Therefore. Petitioner[’]s

inexperience and the state of the situation proves he could not have procured

evidence by the exercise of “reasonable diligence” any faster or in any other way,

then how circumstances occurred organically in this current state of succession. . .

. While at this point petitioner was in no way proficient in addressing the court or

record keeping and application of the law; Petitioner did submit several letters to

the Court Clerk’s office to obtain records, and several letters were written to his

Court appointed “Trial Counseland finally letters were written to the Doctor who

performed the examination to obtain the records from the Doctor which did not

exist. This all coincides with the pursuit of Petitioner[’]s rights once he discovered

the denial of his Sixth Amendment rights.

After nearly two (2) years of diligent study and review of over one-thousand pages

of discovery and an impressively if not equally large amount of legal literature,

including case law, Rules of Court, legal journals, and several books on the topic

of political science. Did the Petitioner begin to form proper study habits and

comprehend how to formulate arguments; only after this diligent effort could a

person with a simple G.E.D. who has never studied the law begin to comprehend

and develop the ability of proper retention of the law with its many legal principles

and standards. This was a necessary lapse of diligence for the Petitioner to

formulate the proper state of mind to direct arguments properly. Which was the

■ conclusion that there was a missing piece and required writing Dr. Eric Drogin, the

forensic.pathologist who examined.the Petitioner and request the missing piece of

evidence which was “a report from the evaluations conducted by Drogin” missing

from the mountain of discovery he’d repeatedly combed over. Only upon this

response from Dr. Drogin did the Petitioner confirm this foundational piece of the

evidence confirming he was indeed suffering from EED and this was a fact “Trail

Counsel” [sic] failed to communicate. ...

4

. «

Case l:22-cv-00061-JHM-HBB Document 21 Filed 05/16/23 Page 5 of 12 PagelD #: 476

Once Petitioner received two letters from Dr. Drogin dated March 23, 2016 and

April 9, 2016 his theories were confirmed. The Petitioner was now in possession

of evidence which would be required by the Court. ... In summary these letters are

new evidence which prove two basic factors (1) Once Petitioner was found to be

suffering from EED “Trial Counsel” did not make an informed reasonable strategic

decision not to fully investigate EED as a defense. (2) “Trial Counsel” testified to

during the evidentiary hearing ....

(DN 19 PagelD # 458-60).

Boyer continues his timeliness argument by asserting under

McOuigginv. Perkins. 569 U.S. 383 (2013) (citing 28 U.S.C. § 2244(d)(1)(D)), a habeas petitioner

has one year of the time in which "new evidence could have been discovered through the-cxercise

of due diligence.” He argues that he was diligent despite being transferred to di fferent prison

institutions within a short span of time (DN 19 PagelD # 462).

II.

EQUITABLE TOLLING

A petitioner’s time-barred petition may be considered if he can establish that he is entit led

to equitable tolling. Equitable tolling exists in two forms—traditional equitable tolling and actual

innocence equitable tolling. The burden is on the movant to demonstrate they are entitled to

equitable tolling. McClendon. 329 F.3d at 494 (citation omitted)).

A. Traditional Equitable Tolling

Under traditional equitable tolling, a petitioner “is ‘entitled to equitable tolling’ only if he

shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way’ and prevented timely filing.” Holland v. Florida. 560 U.S. 631,

649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

The diligence prong examines whether the petitioner “covers those affairs within the

litigant’s control.” Menominee Indian Tribe v. United States, 577 U.S. 250, 257 (2016). Boyer’s

argument in his Petition and Reply are insufficient to show that he acted diligently in pursuing his

rights. In Holland, the petitioner, upon independently discovering that the statute of limitations

5

Case l:22-cv-00061-JHM-HBB Document 21 Filed 05/16/23 Page 6 of 12 PagelD #: 477

?

had expired, immediately wrote out his own pro se federal habeas petition and mailed it to the

federal court the next day. 560 U.S. at 639. Here, Boyer’s argument is that he was unaware of

this claim until he received the trial record and examined it at length, and therefore, he was diligent.

When compared to the pro se litigant in Holland, Boyer does not meet the requisite level of

diligence to satisfy the first prong. Though the undersigned understands it took Boyer two years

. to parse through the legal documents of his trial record, “petitioner could have timely submitted a

‘bare bones’ habeas petition listing his claims and later supplementing his pleadings as necessary,”

therefore, the undersigned cannot deem Boyer acted with diligence to grant tolling. Stennis v.

Place, No. 16-CV-14262. 018 U.S. Dist. LEXIS 116003, at *11 (E.D. Mich. July 12,2018).

Similarly, Boyer does not argue adequate extraordinary circumstances under Holland’s

second prong. A movant’s pro se status and his lack of knowledge of the law are not sufficient

reasons to constitute an extraordinary circumstance and to excuse his late filing of the petition.

See Keeling v. Warden, Lebanon Corr. Inst.. 673 F.3d 452,464 (6th Cir. 2012). Further, to Boyer’s

claim that his multiple prison transfers prevented him from timely filing his petition, this judicial

district, in addition to many others across the country, have stated that "[gjeneral allegations of

transfers and lack of access to legal materials are not exceptional circumstances warranting

equitable tolling, especially where a petitioner does not sufficiently explain or present evidence

demonstrating Why the circumstances he describes prevented him from timely filing a habeas

petition.'' Rame\ v. Mazza. No. 5:19CV-P161 -TBR, 2020 U.S. Dist. LEXIS.89730, at *6 (W.D. ’

Ky. May 20. 2020); see also Andrews v. United States. No. 17-1693, 2017 U.S. App. LEXIS

28295, at *6 (6th Cir. Dec. 12, 2017); United States v. Fredette. 191 F. App’x 711, 713 (10th Cir.

2006) (finding that petitioner was not entitled to equitable tolling of his § 2255 petition, despite

his transfer to as many as six different facilities, because even if petitioner was denied access to

6

Case l:22-cv-00061-JHM-HBB Document 21 Filed 05/16/23 Page 7 of 12 PagelD#: 478

legal materials in violation of his constitutional right of access to the courts, he failed to show how

the transfers affected his ability to timely file); Dodd v. United States, 365 F.3d 1273, 1282-83

(11th Cir. 2004); Akins v. United States. 204 F.3d 1086, 1089-90 (11th Cir. 2000); but see Jones

v. United States, 689 F.3d 621 (6th Cir. 2012) (granting equitable tolling due to a combination of

a series of prison transfers, illiteracy, and a variety of medical conditions).

B. Actual Innocence Equitable Tolling

If a petitioner successfully raises "actual innocence,” it can serve as a gateway through

which he may pass if the statute of limitations has expired. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). But this “gateway should open only when a petition presents ‘evidence of innocence

so strong that a court cannot have confidence in the outcome of the trial unless the court is also

satisfied that the trial was free of nonharmless constitutional error.” Id. at 401 (quoting Schlup v.

Delo, 513 U.S. 298, 316 (1995)). “[T]he vast majority of cases, claims of actual innocence are

rarely successful.” Schulp. 513 U.S. at 324. In order to be successful under this type of tolling,

petitioners must present “new reliable evidence—whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.”

Id. at 324 (emphasis added); Bell v. Howes, 703 F.3d 848, 855 (6th Cir. 2012); Burton v. Bra man.

No. 20-1648, 2021 U.S. App. LEXIS 3228, at *8-(6th Cir. Feb. 4, 2021). This reliable new

evidence must establish ‘“it is more likely than not that no reasonable juror would have convicted

[the petitioner]”’ and must demonstrate “factual innocence, not mere legal insufficiency.” Burton,

2021 U.S. App. LEXIS 3228, at *8-9 (quoting McQuiggin, 569 U.S. at 395, 399); Bouslcy v.

United States. 523 U.S. 614, 624 (1998).

Here, Boyer presents the letters from Eric Drogin, J.D., Ph.D., ABPB, Licensed Clinical

Psychologist (DN 1-26, DN 1-27, DN 1-28). Dr. Drogin’s earliest letter to Boyer is dated March

7

Case l:22-cv-00061-JHM-HBB Document 21 Filed 05/16/23 Page 8 of 12 PagelD #: 479

23, 2016. in which Dr. Drogin stated “[i]t does not appear that a report of your evaluation was ever

requested by trial counsel” (DIM 1-27 PagelD # 221). In .Dr. Drogin’s subsequent letter, dated

April 9, 2016, Drogin discussed his first and second examination with Boyer and went over his

observations.from those meetings (DN 1-28 PagelD # 222-23). <Boyer relies on the March'2016

.letter in his petition to show he received ineffective assistance of counsel as his trial counsel did

not request a report of Boyer’s evaluation from Dr. Drogin. and later during h(is post-conviction

/. proceedings as his counsel did not find it necessary to call Dr. Drogin as a witness, which in

, Boyer's opinion created a conflict of interest.

■jk-

^ Boyer’s argument hinges on his understanding the March 2016 letter alerted him that his

counsel did not request Dr. Drogin’s report regarding the examinations Dr. Drogin conducted, and

this correspondence and its implications constitutes new evidence that, if presented at trial, a

ir

reasonable juror would not have convicted him.

The undersigned cannot find that the correspondence constitutes new evidence to grant

equitable tolling. First, this evidence is not new. Though Dr. Drogin did not prepare a report of

his evaluation at the behest of Boyer’s trial counsel, his opinions regarding Boyer’s mental state '

were available at the time Boyer plead guilty (DN 1-27 PagelD # 221). Second, for the actual

innocence gateway to be open the new '‘evidence must demonstrate factual innocence, not mere

legal insufficiency.” Patterson v. Lafler, 455 F. App’x 606, 609 (6th Cir. 2012) (citing Bouselv.

523 U.S. at 623). Importantly, Dr. Drogin’s report would not prove that Boyer was factually

innocent for the murder of his wife. The report could only serve as a mitigating factor to lower

the criminal responsibility of the degree of homicide from murder to manslaughter as Boyer does

not dispute that he shot his wife, thus Dr. Drogin’s report would only go towards a legal defense

★

,.that might have mitigated his sentence. Morris v. Meko. No. 6:12-cv-04-GFVT-HAl, 2015 U.S.

.8

Case l:22-cv-00061-JHM-HBB Document 21 Filed 05/16/23 Page 9 of 12 PagelD #; 480

*

Dist. LEXIS 132506, at *9-10 (E.D. Ky. Sep. 30, 2015) (stating that when the petitioner does not

argue they are factually innocent of murder, but instead asserts a potential EED claim that at best

“would have legally lowered the level of the offense of which he could have been convicted!.)

the petitioner has not satisfied the actual innocence equitable tolling standard); Underwood v.

Morgan. No. 4:06-CV-P41-M, 2007 U.S. Dist. LEXIS 29906, at *21-22 (W.D. Ky. Apr. 23, 2007);

Lowery v. Bryant. 760 F. App’x 617, 619 (10th Cir. 2019); Beavers v. Saffle, 216 F.3d 91 8. 923

(10th Cir. 2000) (stating that when the petitioner's arguments of intoxication and self-defense “go

to legal innocence, as opposed to factual innocence”). Lastly, the undersigned is not persuaded

that a reasonable juror would have voted to find Boyer not guilty beyond a reasonable doubt if Dr.

Drogin’s report had been made available at the time of trial. Padgett v. Litteral, No. 2:17-CV00033-DLB-EBA, 2018 U.S. Dist. LEXIS 141708, at *12 (E.D. Ky. May 30. 2018) (quoting

McOuiggin. 569 U.S. at 386).

Accordingly, for the reasons discussed above, the undersigned concludes that Boyer is not

entitled to tolling under either traditional or actual innocence equitable tolling. III.

§2244('d)('1)(T»

Boyer makes the brief assertion that the statute of limitations began to run on the discovery

of new evidence. 28 U.S.C. § 2244(d)(1)(D) provides that the one-year period of limitation “shall

run from . . . the date on which the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence.”

When addressing this triggering

mechanism, under § 2244(d)(1), the focus should be on “when a duly diligent person in petitioner’s

circumstances would have discovered” the factual predicate for his claim. See DiCenzi v. Rose.

452 F.3d 465, 470 (6th Cir. 2006) (quoting Wims v. United States, 225 ,F.3d 186. 190 (2d Cir.

, 2000)). Thus, the operative question under this triggering mechanism is when the petitioner

9

Case l:22-cv-00061-JHM-HBB Document 21 Filed 05/16/23 Page 10 of 12 PagelD #: 481

became aware of the “‘important facts for his claims, not when the petitioner recognizes the legal

•

■■--------------------------------

■

■

—

..

-

significance of the facts.”' Webb v. United States, 679 F. App’x 443, 448 (6th Cir. 2017) (a

7 petitioner’s ignorance of a legal claim does not toll the deadline) (emphasis added) (citations

, omitted).

Here, Boyer does not satisfy § 2244(d)(1)(D), and therefore his statute of limitations did

not begin to run on the discovery of “new” evidence, as the section above discussed that the

evidence of Dr. Drogin’s opinion was not new. Additionally, Boyer’s argument focuses on when

he understood the legal significance of the evidence, as opposed to his being aware of the evidence

from Dr. Drogin’s examinations.

Certificate of Appealability

In Slack v. McDaniel, the Supreme Court established a two-pronged test that is used to

determine whether a Certificate of Appealability should be issued on a habeas claim denied on

procedural grounds. 529 U.S. 473, 484-85 (2000). To satisfy the first prong of the Slack test, a

petit ioner must demonstrate “jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right.” Id. at 484. To satisfy the second prong, a

petitioner must show “jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Id. Notably, the Court need not conduct the two-pronged inquiry

in the order identified or even address both parts if a petitioner makes an insufficient showing on

one part.

Id. at 485.

For example, if the Court determines a petitioner failed to satisfy the

procedural pron», it need not determine whether the other prong is satisfied. Id.

For-the reasons set forth above, jurists of reason would not find it debatable that Boyer’s

§ 2254 petition must be dismissed because it is time barred and he has not demonstrated entitlement

10

Case l:22-cv-00061-JHM-HBB Document 21 Filed 05/16/23 Page 11 of 12 PagelD #: 482

-iJ

to traditional or actual innocence equitable tolling.

Therefore, the undersigned does not

recommend issuance of a Certi ficate of Appealability.

RECOMMENDATION

For the foregoing reasons, the undersigned RECOMMENDS that Boyer’s petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2254 (DN 1) be DISMISSED as time barred.

Additionally, the undersigned DOES NOT RECOMMEND issuance of a Certificate of

Appealability.

May 15, 2023

H. Brent Brennenstuhl

United States Magistrate Judge

Case i:22-cv-00061-JHM-HBB Document 21 Filed 05/16/23 Page 12 of 12 PagelD #: 483

• u

NOTICE

Under the provisions of 28 U.S.C. §§ 636(b)(1)(B) and (C) and Fed. R. Civ. P. 72(b)(1),

the undersigned magistrate judge files these findings and recommendations with the Court and a

copy shall forthwith be electronically transmitted or mailed to all parties. Within fourteen (14)

days .alter being served with a copy, any party may serve and file written objections to such

findings and recommendations as provided by the Court. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.

P. 72(b)(2). If a party has objections, such objections must be timely fled, or further appeal is

waived. Thomas v. Arri. 728 F.2d 813 (6th Cir. 1984). affd. 474 U.S. 140 (1985).

May 15, 2023

H. Brent Brennenstuhl

United States Magistrate Judge

j

Copies to:

t

William L. Boyer,pro se

Counsel of Record

i

12

Case l:22-cv-00061-JHM-HBB Document 21-1 Filed 05/16/23 Page 1 of 1 PagelD #: 484

V

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

BOWLING GREEN DIVISION

CIVIL ACTION NO. 1:22-CV-0006I-JHM-HBB

PETITIONER

WILLIAM L. BOYER

VS.

RESPONDENTS

AMY ROBEY, WARDEN, et al.

ORDER

The above matter having been referred to the United States Magistrate Judge, who has filed

his Findings of Fact, Conclusions of Law, and Recommendation, no objections having been tiled

thereto, and the Court having considered the same:

IT IS HEREBY ORDERED that the Court adopts the Findings of Fact, Conclusions of

Law, and Recommendation as set forth in the report submitted by the United States Magistrate

Judge.

IT IS FURTHER ORDERED that Petitioner’s petition for writ of habeas corpus pursuant,

to 28 U.S.C. § 2254 (DIM 1) is DISMISSED.

Copies to:

William L. Boyer,pro se

Counsel of Record

Case l:22-cv-00061-JHM-HBB Document 21-2 Filed 05/16/23 Page 1 of 1 PagelD #: 485 .

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

BOWLING GREEN DIVISION

CIVIL ACTION NO. U22-CV-00061-JHM-HBB

WILLIAM L. BOYER

PETITIONER

VS.

AMY ROBEY, WARDEN, et al.

RESPONDENTS

ORDER

The above matter having been referred to the United States Magistrate Judge, who has filed

his Findings of Fact, Conclusions of Law, and Recommendation, objections having been filed

thereto, and the Court having considered the same:

II IS HEREBY ORDERED that the Petitioner’s objections are overruled, and the Court

adopts the findings ol Fact, Conclusions of Law, and Recommendation as set forth in the report

submitted by the United States Magistrate Judge.

IT IS FURTHER ORDERED that Petitioner’s petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254 (DN 1) is DISMISSED,

Copies to:

William L. Boyer,pro se

Counsel of Record

»

*■

Case l:22-cv-00061-JHM-HBB Document 21-3 Filed 05/16/23 Page 1 of 1 PagelD #: 486

V

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

BOWLING GREEN DIVISION

CIVIL ACTION NO. 1:22-CV-00061-JHM-HBB

WILLIAM L. BOYER

PETITIONER

VS.

AMY ROBEY, WARDEN, et al.

RESPONDENTS

ORDER

In accordance with the Order of the Court, it is HEREBY ORDERED AND ADJUDGED

as follows:

(1) Petitioner’s petition is dismissed.

(2) This is a FINAL judgment, and the matter is STRICKEN from the active docket of the

Court.

Copies to:

William L. Boyer, pro se

Counsel of Record

i.

* .

>

■

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT BOWLING GREEN

Electronically Filed

Civil Action No. 1:22-CV-P61-GNS

■\

WILLIAM L. BOYER

PETITIONER

v.

AMY ROBEY, WARDEN

RESPONDENT

ORDER

**

**

**

Petitioner, William Boyer, having petitioned this Court for a writ of habeas

*

i

V

corpus, the Warden having filed a limited answer to the petition, and the Court being

otherwise sufficiently advised,

IT IS HEREBY ORDERED AND ADJUDGED that the petition is untimely,

and is DENIED and is DISMISSED with prejudice.

DATED:

*■

%I

%

OFFICE OF THE CLERK

UNITED STATES DISTRICT COURT

Room 126 Federal Building

423 Frederica Street

FIRST-CLASS MAIL

(Ml

^

0

°

CL

■ 07/3S/2023 ZtP 42301 ^

f 043M30221814

3

OFFICIAL BUSINESS

William L. Boyer

260673

LUTHER LUCKETT CORRECTIONAL COMPLEX

Dawkins Road, Box 6

LaGrange, KY 40031

1-22-CV-61-JHM-HBB DN 24 and 25

40034-OOOSOS

-*

Ui

53 $000.602

Owensboro, KY 42301-3013

i*

quadfent

room

\

Case l:22-cv-00061-JHM-HBB Document 24 Filed 07/06/23 Page 1 of 1 Page ID #: 506

*

•'V.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

BOWLING GREEN DIVISION

CIVIL ACTION NO. 1:22-CV-00061-JHM-HBB

WILLIAM L. BOYER

PETITIONER

VS.

AMY ROBEY, WARDEN, et al.

RESPONDENTS

ORDER

The above matter having been referred to the United States Magistrate Judge, who has filed

his Findings of Fact, Conclusions of Law, and Recommendation, objections having been filed

thereto, and the Court having considered the same:

IT IS HEREBY ORDERED that the Petitioner’s objections are overruled, and the Court

adopts the Findings of Fact, Conclusions of Law, and Recommendation as set forth in the report

\

submitted by the United States Magistrate Judge.

IT IS FURTHER ORDERED that Petitioner’s petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254 (DN 1) is DISMISSED.

Joseph H. McKinley Jr., Senior Judge

United States District Court

July 6. 2023

Copies to:

William L. Boyer, pro se

Counsel of Record

Case l:22-cv-00061-JHM-HBB Document 25 Filed 07/06/23 Page 1 of 1 PagelD #: 507

*r.

*

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

BOWLING GREEN DIVISION

CIVIL ACTION NO. 1:22-CV-00061-JHM-HBB

WILLIAM L. BOYER

PETITIONER

VS.

AMY ROBEY, WARDEN, et al.

RESPONDENTS

ORDER

In accordance with the Order of the Court, it is HEREBY ORDERED AND ADJUDGED

as follows:

(1) Petitioner’s petition is dismissed.

(2) The Court certifies that an appeal would be frivolous and therefore not taken in good

faith. See 28 U.S.C. § 1915(a)(3).

(3) This is a FINAL judgment, and the matter is STRICKEN from the active docket of the

Court.

Joseph H. McKinley Jr., Senior Judge

Copies to:

William L. Boyer, pro se

Counsel of Record

United States District Court

July 6, 2023

«

RENDERED: JANUARY 29, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

su)iin3

^m^onwealtlj of Kentucky

Court of Appeals deceived rcc

JUL 0 7 2021

JUH \ \JSJ1

OKJt

NO. 2019-C A-0331 -MR

OFFENDER RECORDS

WILLI AM BOYER

V.

APPELLANT

APPEAL FROM WARREN CIRCUIT COURT

HONORABLE STEVE ALAN WILSON, JUDGE

ACTION NO. 1 l-CR-00328

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION

AFFIRMING

** * * ** *♦ **

BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.

COMBS, JUDGE: William Boyer, pro se, appeals from an order of the Warren

Circuit Court denying a motion to vacate his criminal conviction. Boyer contends

that his attorney failed to provide him with adequate legal assistance through the

pre-trial process. After our review of the record, the parties ’ briefs, and the

applicable law, we affirm.

i

William Boyer and Brooke Boyer divorced in 2008. On March 4,

2011, William did not show up for work. Instead, he went to Brooke’s home

where he overheard a telephone conversation. William returned to his home,

retrieved a bolt-action carbine rifle, hid it in a laundry basket, and re-entered

Brooke’s home. William confronted Brooke in the basement and asked her to give

their relationship another chance. She declined and began to climb the stairs.

William retrieved the rifle and fired. He reloaded and fired again; reloaded and

fired yet again. Brooke was struck by each bullet and fell dead. Outside Brooke’s

home, William left a telephone and a note to his seven-year-old daughter advising

her not to go inside the house but to call 911 instead. William retreated to his

home. After a standoff with police, he eventually surrendered. Once in custody,

William confessed that he had shot and killed Brooke in her home. He was

indicted for murder and first-degree burglary on April 27,2011.

Thereafter, Boyer submitted to a psychiatric evaluation. The

psychiatric report indicated that Boyer was competent to stand trial and capable of

appreciating the criminality of his conduct when he shot and killed Brooke. The

trial court conducted a competency hearing on July 14, 2011. It concluded that

Boyer was competent to proceed.

Defense counsel retained Dr. Eric Drogin, a psychologist, to evaluate

Boyer further. On January 3, 2013, counsel filed notice of an intent to present

-2-

J

expert evidence to show that Boyer was suffering from an extreme emotional

disturbance at the time of the shooting. Counsel expected that the evidence would

be introduced through the testimony of Dr. Drogin.

.On March 20, 2012, following extensive negotiations with the

Commonwealth, Boyer appeared with counsel before the Warren Circuit Court.

He entered a plea of guilty to the murder charge. In exchange for the guilty plea,

the Commonwealth agreed to dismiss the first-degree burglary charge and

unrelated offenses contained in two other indictments. The Commonwealth agreed

to recommend to the court that Boyer be sentenced to serve life in prison but that

he be eligible for parole after twenty (20) years. The court’s judgment and

sentence were entered on April 30, 2013.

On May 4, 2016, Boyer filed a motion to vacate his conviction under

the provisions of RCr1 11.42. Boyer alleged that trial counsel was ineffective by:

failing to investigate the defense of extreme emotional disturbance; failing to

obtain a written report from Dr. Drogin; failing to advise him properly as to the

defense s likelihood of success; failing to follow-up with a firearms expert to show

that the rifle he used to kill Brooke could have misfired; failing to pursue

suppression of his confession to police; and guaranteeing him that he would be

paroled in twenty (20) years.

Kentucky Rules of Criminal Procedure.

-3-

On September 14, 2017, Boyer’s appointed counsel filed a motion

requesting an evidentiary hearing. The trial court granted the motion and set the

matter for hearing to be conducted on June 5, 2018. Boyer and his former counsel,

Attorney Lowe and Attorney Downs, testified at the hearing. The circuit court

ordered the parties to submit post-hearing briefs.

After considering the evidence and the extensive arguments of

counsel, the trial court denied Boyer’s motion for post-conviction relief in a

comprehensive order entered February 13,2019. Boyer was permitted to proceed

on appeal in forma pauperis. On February 27, 2019, the circuit court appointed

appellate counsel to represent him.

On June 27, 2019, the Department of Public Advocacy filed an

Anders2 motion with this Court to withdraw as Boyer’s counsel. In the motion,

counsel indicated that the post-conviction proceeding was not one “that a

reasonable person with adequate means would be willing to bring at his own

expense.” Boyer did not respond to the motion. By order entered August 6, 2019,

we granted counsel’s motion to withdraw and ordered that Boyer submit a brief,

pro se, within sixty (60) days.

2 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.E.fl.2d 493 (1967), provided a

procedural framework for safeguarding the constitutional rights of an indigent criminal

defendant when appointed counsel determined that there were no legitimate grounds for appeal.

-4-

On appeal, Boyer contends that the circuit court erred by denying his

motion for post-conviction relief. The Commonwealth disagrees on each

substantive ground presented. It also argues that Boyer failed to file a timely

motion for post-conviction relief We agree that Boyer’s motion for relief was

untimely.

The provisions of RCr 11.42(10) contain a three-year time limitation:

Any motion under this rule shall be filed within three

years after the judgment becomes final, unless the motion

alleges and the movant proves either:

(a) that the facts upon which the claim is predicated were

unknown to the movant and could not have been

ascertained by the exercise of due diligence; or

(b) that the fundamental constitutional right asserted was

not established within the period provided for herein and

has been held to apply retroactively.

... If the motion qualifies under one of the foregoing

exceptions to the three-year time limit, the motion shall

be filed within three years after the event establishing the

exception occurred. Nothing in this section shall

preclude the Commonwealth from relying upon the

defense of laches to bar a motion upon the ground of

unreasonable delay in filing when the delay has

prejudiced the Commonwealth’s opportunity to present

relevant evidence to contradict or impeach the movant’s

evidence.

Untimeliness under the rule operates as a procedural bar to the motion. Moorman

v. Commonwealth, 484 S.W.3d 751, 757 (Ky. App. 2016). The circuit court’s

-5-

order denying Boyer’s motion for post-conviction relief can be affirmed upon this

basis alone.

In Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005),

overruled by Hallum v. Commonwealth, 347 S.W.3d 55 (Ky. 2011), the Supreme

Court of Kentucky considered whether an inmate’s untimely filing of an RCr 11.42

motion due to a delay in mailing by prison officials could be deemed timely

through adoption of the prison mail box rule or the doctrine of equitable tolling.

The court rejected the prison mail box rule in favor of equitable tolling, a doctrine

that provides that an express limitations period will not bar an untimely claim if,

despite the claimant’s diligent efforts, extraordinary circumstances prevented a

timely filing.

In 2011, RCr 12.04 was amended to adopt the prison mail box rule.

RCr 12.04(5) now provides that a “notice [of appeal] shall be considered filed if its

envelope is officially marked as having been deposited in the institution’s internal

mail system on or before the last day for filing with sufficient First Class postage

prepaid.”

In Hallum, the Supreme Court of Kentucky considered the effect of

RCr 12.04(5) with respect to an inmate’s notice of appeal. The court determined

that RCr 12.04(5) should be applied retroactively and addressed the continued

,

applicability of the equitable tolling doctrine. The court concluded that the

-6-

•

equitable tolling doctrine was now “duplicative and superfluous, with its utility

marginalized.” Hallum, 347 S.W.3d at 59. It observed that the “prison mail box

rule was crafted to remedy the procedural deficiency our rules posed to pro se

inmates seeking to appeal; thus, there is no longer a need for Robertson's equitable

tolling provision.” Id.

Nevertheless, in Roach v. Commonwealth, 384 S. W.3d 131 (Ky.

2012), the Supreme Court of Kentucky again discussed the application of equitable

tolling in relation to inmate actions - this time in relation to an inmate’s RCr 11.42

motion. The Court declined to hold that a belated amendment to an inmate’s

timely filed RCr 11.42 motion could be saved by the doctrine of equitable tolling.

The inmate had not presented the issue to either the trial court or to this Court on

appeal. Consequently, the Supreme Court concluded that it need not decide

whether equitable tolling could ever apply to an untimely RCr 11.42 motion.

However, it observed that even if the doctrine of equitable tolling coufd apply to

such proceedings, the doctrine would not apply to the facts before it because the

inmate could not show both that he had been pursuing his rights diligently and that

some extraordinary circumstance stood in his way and prevented a timely filing.

Thereafter, in Moorman, this Court observed that the Supreme Court

of Kentucky had not given a definitive answer as to whether the doctrine applies in

the context of RCr 11.42 motions. Nevertheless, relying upon precedent of the

-7-

Supreme Court of the United States, we held that in order to invoke equitable

tolling, an inmate must establish that he had been pursuing his rights diligently and

that some extraordinary circumstance stood in his way. Moorman, 484 S.W.3d at

757 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814, 161

L.Ed.2d 669 (2005)). In that case, we concluded that the inmate failed to carry her

burden to establish these factors and that equitable tolling did not apply to save the

claims asserted in an untimely supplement to her RCr 11.42 motion.

Boyer began to pursue post-conviction relief shortly after his

conviction in April 2013. In December 2013, he indicated to the circuit clerk that

he believed counsel had failed to provide him with adequate assistance, and he

requested a copy of the record compiled in his case so that he could finish

preparing his RCr 11.42 petition. Nearly two years later, Boyer began filing a

series of motions requesting the Warren Circuit Court to order that he be provided

certified copies of records, many of which were not in the court’s possession. In

an order entered November 25, 2015, the court directed the Warren Circuit Clerk

to provide to Boyer the documents in its possession. Boyer’s petition for relief was

eventually filed on May 4, 2016.

Because Boyer waived his right to appeal when he entered a guilty

plea, the court’s judgment of conviction and sentence became final when it was

entered on April 30, 2013. See Palmer v. Commonwealth, 3 S.W.3d 763 (Ky. App.

-8-

1999). Boyer’s petition for post-conviction relief was not filed within the three*

year period provided for by RCr 11.42. Accordingly, the petition was untimely

unless the circumstances warranted application of the equitable tolling doctrine.

The record before us, as summarized above, does not indicate that Boyer diligently

pursued his rights. All the facts upon which his claim is predicated were known to

him; he even personally corresponded with Dr. Drogin. Nothing prevented Boyer

from filing a timely claim. Consequently, the doctrine of equitable tolling is

inapplicable. His petition for relief was untimely.

Even if Boyer’s petition were not procedural ly barred by its

untimeliness, we would affirm the order of the Warren Circuit Court denying his

request for relief. Boyer’s allegations of ineffective assistance of counsel are

evaluated under the standard promulgated by the Supreme Court of the United

States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984), as modified by Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d

203 (1985), where the defendant pleaded guilty rather than going to trial.

Where a movant has pled guilty, he must later demonstrate on appeal

that: (1) defense counsel’s performance fell outside the wide range of

professionally competent assistance; and (2) a reasonable probability exists that,

but for the deficient performance of counsel, the movant would not have pled

-9-

guilty - but would have insisted on going to trial. Commonwealth v. Rank, 494

S.W,3d 476 (Ky. 2016).

Courts considering a collateral attack on a judgment of conviction

must presume that counsel’s performance was reasonable. Commonwealth v.

McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (citing Commonwealth v. Bussell,

226 S.W.3d 96, 103 (Ky. 2007)). We must

consider the totality of the circumstances surrounding the

guilty plea and juxtapose the presumption of

voluntariness inherent in a proper plea colloquy with a

Strickland v. Washington inquiry into the performance of

counsel [.)

Rank, 494 S.W.3d at 481 (quoting Bronkv. Commonwealth, 58 S.W.3d 482, 486

(Ky. 2001)). The circuit court’s factual findings are reviewed only for clear error;

the application of legal standards is reviewed de novo. Commonwealth v.

Thompson, 548 S.W.3d 881, 887 (Ky. 2018).

Boyer contends that the circuit court erred by concluding that counsel

provided adequate legal assistance because he fully investigated an extreme

emotional disturbance defense and advised Boyer of Dr. Drogin’s opinion and

potential testimony regarding the defense. We disagree.

The circuit court was persuaded by counsel’s testimony indicating that

he consulted with Dr. Drogin regarding his opinion that Boyer had acted under

extreme emotional disturbance. The court found that counsel shared this

-10-

information with Boyer and that counsel was not required under the circumstances

to request that Dr. Drogin generate a written report. The circuit court noted that

there was countervailing evidence indicating that Boyer had not acted under

extreme emotional disturbance and that there was no assurance that a jury would

be persuaded by Drogin’s anticipated testimony given the circumstances. The

court accepted counsel’s assessment of the risks of trial and the benefit of pleading

guilty. It is not ineffective assistance of counsel for an attorney, after investigating

the case, to advise his client to plead guilty in anticipation of a lighter sentence.

Osborne v. Commonwealth, 992 S.W.2d 860 (Ky. App. 1998). The circuit court’s

factual findings were supported by substantial evidence. There was no error.

Next, Boyer contends that the circuit court erred by failing to

conclude that he was deprived of adequate legal assistance because counsel did not

file a motion to suppress Boyer’s confession and did not consult with a ballistics

expert. Again, we disagree.

With respect to the ballistics expert, the circuit court accepted

counsel’s testimony indicating that he had retained and consulted with John Nixon,

a forensic firearms and ballistics expert. Nixon’s expert opinion foreclosed a

defense that Boyer had accidentally discharged the rifle. The circuit court’s

findings were supported by substantial evidence. There was no error.

-11-

With respect to counsel’s decision not to pursue suppression of

Boyer’s confession, the circuit court found that counsel had considered filing a

motion to suppress but concluded that there was no legal basis upon which to

challenge the voluntariness of Boyer’s statement to police. It found that Boyer

failed to provide a sufficient basis upon which to question the admissibility of this

statement to police. The circuit court also found: that Boyer was properly advised

about his constitutional rights; that he understood them; and that the police

interview was not unfairly coercive. Finally, the circuit court found that if the

confession had been subject to suppression, there is no basis upon which to

conclude that Boyer was unfairly prejudiced by a failure to file the motion because

other evidence of his guilt was overwhelming. The circuit court was not persuaded

that Boyer would have insisted on going to trial in light of the compelling evidence

against him. The circuit court’s factual findings were supported by substantial

evidence. There was no error.

In summary, Boyer did not file a timely motion for relief. But even if

the motion had been timely, he failed to show that counsel’s performance was

deficient. Consequently, the circuit court did not err by denying the post­

conviction motion for RCr 11.42 relief.

We AFFIRM the order of the Warren Circuit Court.

-12-

I

- -*

*. " »

S' .

ALL CONCUR,

BRIEF FOR APPELLANT:

BRIEF FOR APPELLEE:

William Boyer, Pro Se

Lagrange, Kentucky

Daniel Cameron

Attorney General of Kentucky

James Havey

Assistant Attorney General

Frankfort, Kentucky

-13-

Kelly Stephens

Clerk

Supreme Court of Kentucky

State Capitol Buildino

700 Capital Avenue. Room 209

Frankfort. Kentucky1 40601

#

&

H

&

2021-SC-0081-D

S*LOT CORraCTIONAL COMPLEX

1612 DAWKINS RD, PO BOX 6

LAGRANGE KY 40031

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KELLY STEPHENS

OFFICE OF THE CLERK

Clerk

SUPREME COURT OF KENTUCKY

ROOM 209, STATE CAPITOL

700 CAPITAL AVE.

FRANKFORT, KENTUCKY 40601-3488

Telephone:

(502) 564-4720

FAX:

(502) 564-5491

5/5/2022

William Boyer #260673

Luther Luckett Correctional Complex

1612 Dawkins Rd. PO Box 6

LaGrange,KY 40031

RE: Request for Documents

Dear Mr. Boyer:

Please find enclosed the following: a copy of the Order denying the Motion for Discretionary Review in

2021-SC-0081-D

Kind Regards,

KELLY STEPHENS, CLERK

By:

Chief Deputy Clerk

Enclosures: Order denying the Motion for Discretionary Review in 2021-SC-0081-D

■)

l\

V

^uprcntB (Enuri uf %m{utk\j

2021-SC-0081-D

(2019-CA-0331)

WILLIAM BOYER

V.

MOVANT

WARREN CIRCUIT COURT

ll-CR-00328

COMMONWEALTH OF KENTUCKY

RESPONDENT

ORDER DENYING DISCRETIONARY REVIEW

The motion to supplement the motion for discretionary review is

granted.

The motion for review of the decision of the Court of Appeals is

denied.

ENTERED: June

2021.

phn D. Minton, Jr.

Inief Justice

,hMame: Boyer, William L.

IPTS020A

External Movements (l - 27 of 27)

DOC #: 260673 PID #: 0022872

Friday March 29, 2024 08:25:29 AM

Date

Time

03/24/2021

04:28 PM

Luther Luckett

Corr. Complex

Received at DOC

Facility

Not Specified

Southeast State

Corr. Complex

03/24/2021

11:58 AM

Southeast State

Corr. Complex

Transferred to DOC

Facility

Not Specified

Luther Luckett

Corr. Complex

12/08/2020

01:24 PM

Southeast State

Corr. Complex

Received at DOC

Facility

Not Specified

Luther Luckett

Corr. Complex

12/08/2020

07:23 AM

Luther Luckett

Corr. Complex

Transferred to DOC

Facility

Not Specified

Southeast State

Corr. Complex

06/05/2018

07:20 PM

Luther Luckett

Corr. Complex

Returned from Court

Appearance

Not Specified

Warren County Jail

06/05/2018

11:09 AM

Luther Luckett

Corr. Complex

Out To Court

Appearance

Not Specified

Warren County Jail

08/03/2017

10:07 AM

Luther Luckett

Corr. Complex

Returned from

Medical

Completed

Treatment

Kentucky State

Reformatory

08/03/2017

08:21 AM

Luther Luckett

Corr. Complex

Out on Medical

Medical

Appointment

Kentucky State

Reformatory

08/04/2016

10:00 AM

Luther Luckett

Corr. Complex

Returned from

Medical

Completed

Treatment

Kentucky State

Reformatory

08/04/2016

07:24 AM

Luther Luckett

Corr. Complex

Out on Medical

Medical

Appointment

Kentucky State

Reformatory

10/01/2015

11:00 AM

Luther Luckett

Corr. Complex

Returned from

Medical

Completed

Treatment

Kentucky State

Reformatory

10/01/2015

08:10 AM

Luther Luckett

Corr. Complex

Out on Medical

Medical

Appointment

Kentucky State

Reformatory

01/22/2015

12:47 PM

Luther Luckett

Corr. Complex

Returned from

Medical

Completed

Treatment

Kentucky State

Reformatory

01/22/2015

08:32 AM

Luther Luckett

Corr. Complex

Out on Medical

Medical

Appointment

Kentucky State

Reformatory

11/20/2013

11:21 AM

Luther Luckett

Corr. Complex

Returned from

Medical

Completed

Treatment

Kentucky State

Reformatory

11/20/2013

08:16 AM

Luther Luckett

Corr. Complex

Out on Medical

Medical

Appointment

Kentucky State

Reformatory

08/09/2013

08:33 AM

Luther Luckett

Corr. Complex

Received at DOC

Facility

Not Specified

Kentucky State

Reformatory

08/09/2013

07:48 AM

Kentucky State

Reformatory

Transferred to DOC

Facility

Not Specified

Luther Luckett

Corr. Complex

07/17/2013

01:14 AM

Kentucky State

Reformatory

Received at DOC

Facility

Hold Ticket

Roederer

Assessment Cntr

07/16/2013

11:52 PM

Roederer

Assessment Cntr

Transferred to DOC

Facility

Hold Ticket

Kentucky State

Reformatory

06/14/2013

11:31 AM

Roederer

Assessment Cntr

Received at DOC

Facility

Not Specified

Kentucky State

Reformatory

06/14/2013

11:02 AM

Kentucky State

Reformatory

Transferred to DOC

Facility

Not Specified

Roederer

Assessment Cntr

05/31/2013

11:56 AM

KentucKyState

Reformatory

Receivecrar*53?

Facility

Hold Ticket

Roederer^^^^

Assessment Cntr

05/31/2013

11:45 AM

Roederer

Assessment Cntr

Transferred to DOC

Facility

Hold Ticket

Kentucky State

Reformatory

Reporting Location

Movement Type

Reason

Other Location

Date

Time

Reporting Location

05/23/2013

10:57 AM

Roederer

Assessment Cntr

Received at DOC

Facility

Controlled

Intake

Warren County Jail

05/23/2013

10:09 AM

Warren County Jail

Transferred to DOC

Facility

Controlled

Intake

Roederer

Assessment Cntr

04:09 PM

Warren County Jail

New Commitment

Controlled

Intake

Warren County Jail

J

04/29/2013

Movement Type

V:

‘T

Reason

Other Location

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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