United States District Court, N.D. Indiana, South Bend Division
JAMES T. BAGBY, Petitioner,
OPINION AND ORDER
L. Miller, Jr. United States Judge.
T. Bagby, a prisoner without an attorney, filed a habeas
corpus petition challenging his convictions and 30 year
sentence for two counts of sexual misconduct with a minor by
the Howard Circuit Court on December 16, 2009, under cause
number 34C01-0901-FC-1. Mr. Bagby acknowledges that the
petition signed on March 22, 2016, is untimely. He
doesn't dispute the Respondent's calculation that the
deadline was December 28, 2015. He argues that he is entitled
to equitable tolling and can demonstrate actual innocence.
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 (2010) (quotation marks and citation omitted).
Equitable tolling is an extraordinary remedy that is rarely
granted. Obriecht v. Foster, 727 F.3d 744, 748 (7th
Cir. 2013). “Petitioners bear the burden of proving
that they qualify for equitable tolling.” Taylor v.
Michael, 724 F.3d 806 (7th Cir. 2013).
Bagby argues that he has pursued his rights diligently, but
that his attorneys miscalculated the deadline for filing a
habeas corpus petition. In support, he has filed several
letters sent to and from his attorneys. These letters show
that Mr. Bagby's attorneys were working on a State (not a
federal) habeas corpus petition. None of the letters from his
attorneys mention a deadline for filing a federal habeas
corpus petition. Only a letter from Mr. Bagby includes a
miscalculation of the deadline. Nevertheless, even if Mr.
Bagby could produce a letter from his attorneys with a
miscalculated deadline, “'Attorney miscalculation
of a deadline is simply not sufficient to warrant equitable
tolling, ' neither is petitioner miscalculation.”
Taylor v. Michael, 724 F.3d 806, 812 (7th Cir. 2013)
(brackets omitted) quoting Lawrence v. Florida, 549
U.S. 327, 336 (2007). Therefore, without regard to whether it
was he or his attorneys who miscalculated the deadline, Mr.
Bagby hasn't shown that he is entitled to equitable
Bagby also argues that he is actually innocent. A petitioner
who asserts actual innocence “must demonstrate
innocence; the burden is his, not the state's . .
..” Buie v. McAdory, 341 F.3d 623, 626-27 (7th
Cir. 2003) (emphasis in original). Furthermore, actual
innocence means “factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523
U.S. 614, 623 (1998). To support a claim of actual innocence
the petitioner must come forward with “new reliable
evidence - whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence - that was not presented at trial, ”
id., and must show that “in light of new
evidence, it is more likely than not that no reasonable juror
would find him guilty beyond a reasonable doubt.”
House v. Bell, 547 U.S. 518, 537 (2006). Because of
the difficulty of meeting this standard, such claims are
“rarely successful.” Schlup v. Delo, 513
U.S. 298, 324 (1995).
Bagby has not submitted either scientific evidence, an
eyewitness account, or physical evidence. Rather he has
presented an affidavit from Dale Prophet, Jr., the child
sexual misconduct victim's father which states:
1. While talking with my daughter, Amanda Roe she disclosed
to me that she had made up the allegations in which James T.
Bagby, her step father had been charged with two sexual
misconduct charges. She stated she had made the whole story
up just to get him into trouble.
2. Regretfully my daughter, Amanda Roe has had a past and
current history of making false statements. 3. ECF 23-2 at 36
(“3. ” hand written in original).
the new trial context, motions based solely upon affidavits
are disfavored because the affiants' statements are
obtained without the benefit of cross-examination and an
opportunity to make credibility determinations.
Petitioner's affidavits are particularly suspect in this
regard because . . . they consist of hearsay.”
Herrera v. Collins, 506 U.S. 390, 417 (1993)
(citation omitted). So too with this affidavit. Mr. Prophet
repeats a statement made by the victim - that is hearsay. The
affidavit in Herrera was given more than eight years
after the trial. This one was made nearly seven years later.
But “[n]o satisfactory explanation has been given as to
why the affiant waited until the 11th hour . ...”
Id. Mr. Prophet gives no information about when he
had this conversation with the victim. Nor is there any
information about how this affidavit was prepared or
executed. There is no indication that this affidavit
constitutes reliable evidence and it does not come close to
demonstrating actual innocence.
under Section 2254 Habeas Corpus Rule 11, the court must
grant or deny a certificate of appealability. To obtain a
certificate of appealability under 28 U.S.C. § 2253(c),
the petitioner must make a substantial showing of the denial
of a constitutional right by establishing “that
reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000). For the reasons
explained in this opinion, there is no basis for encouraging
Mr. Bagby to proceed further. Thus, a certificate of
appealability will be denied. For the same reasons, he may
not appeal in forma pauperis because an appeal could not be
taken in good faith.
these reasons, the court:
(1) DENIES the habeas corpus petition;
(2) DENIES a certificate of appealability pursuant to Section
2254 Habeas Corpus Rule 11;
(3) DENIES leave to appeal in forma pauperis pursuant to 28