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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OFFICIAL BUSINESS
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William L. Boyer
260673
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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
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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.