The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ON PETITIONER'S APPLICATION FOR A CERTIFICATE OF APPEALABILITY
Singleton filed his habeas petition on March 2, 2009. (Doc. No. 1.) Respondents moved to dismiss the petition on May 4, 2009, on the ground that it was untimely. (Doc. No. 6.) Over three weeks later, in a letter sent to the Clerk of the Court, Singleton asked that a lawyer be appointed to him. (Doc. No. 9.) He represented that he had a disability covered by the ADA ("Blind, Paraplegic") and was unable to read and write, or, for that matter, understand the essentials of his case. Magistrate Judge Bencivengo denied Singleton's request, without prejudice. (Doc. No. 10.) Judge Bencivengo found no evidence that Singleton suffered from the disabilities alleged. She also noted that Singleton's pro se habeas petitions in state and federal court "are fairly organized and present the issues and arguments with adequate clarity and efficiency," which cut against his claim that he needed the help of a lawyer to seek habeas relief. Finally, Judge Bencivengo indicated that the likelihood of Singleton succeeding on the merits of his petition was unclear given its apparent untimeliness.
Judge Bencivengo issued her Report and Recommendation ("R&R") on June 4, 2009, suggesting that Singleton's habeas petition be dismissed because it was untimely. (Doc. No. 11.) The Court adopted the R&R on October 19, 2009. (Doc. No. 16.) While the R&R was pending, Singleton submitted multiple requests for counsel to the Court, only one of which was accepted for filing. (Doc. Nos. 12--15.) In its order adopting the R&R, the Court addressed and denied Singleton's request:
While all Petitioner has filed in this case is the Petition, a motion to proceed in forma pauperis, and two requests for counsel, the Court sees no evidence that Petitioner is unable to present and articulate his claims. While Petitioner alleges he is blind, no doubt a serious impairment, he provides no evidence. The Court is already obliged to construe Petitioner's claims liberally . . . and the fact that Petitioner first requested counsel almost three months after he filed his Petition, and after Respondent moved to dismiss it, lead the Court to further doubt that the appointment of counsel is appropriate in this case.
Singleton filed an Application for Certificate of Appealability on December 7, 2009. (Doc. No. 20.) On December 18, 2009, he filed medical exhibits confirming that he is, in fact, blind and disabled. (Doc. No. 23.) This was the first time the Court had seen this evidence.
Rather than rule right away on his Application, the Court decided to revisit the question, in light of the received evidence, whether Singleton should be appointed counsel. (Doc. No. 24.) The Court subsequently granted Singleton's request for counsel, but only for the specific purpose of assisting Singleton with his Application for Certificate of Appealability:
There appears, however, to be no good cause for Petitioner's delay in filing his federal habeas petition, even taking his disabilities into account, and the Court strongly agrees with the R&R's conclusion, which it adopted, that the petition is time-barred. Appointed counsel is therefore limited to assisting Petitioner with his Application for a Certificate of Appealability. Petitioner did not object to the R&R and the Court is not appointing counsel so that he may do so.
In other words, the Court wasn't inclined to rewind the proceedings and appoint counsel retroactively, giving Singleton an opportunity to object to the R&R after the Court had already adopted it. It was enough, in the Court's judgment, to appoint Singleton a lawyer going forward, for the purpose of seeking a Certificate of Appealability.
Attorney Vicki Marolt Buchanan was appointed to represent Singleton on February 11, 2010, and she filed an Application for Certificate of Appealability on March 30, 2010.
II. Singleton's Application for COA
Following Singleton's lead in the Application he filed by himself, the Application drafted by Buchanan focuses exclusively on the question whether the Court's decision not to appoint counsel to Singleton at an earlier time is appealable. Neither Singleton's Application nor the Application drafted by Buchanan address the substantive question at issue with his petition, which is whether it was filed within the statute of limitations. At best, Buchanan touches on the issue tangentially by suggesting, "In all likelihood, his blindness may have prevented him from timely filing petitions in the state court and in such a circumstance, he may have been able to argue equitable tolling."
Singleton's conviction in state court became final on November 7, 2005. He therefore had until November 8, 2006 to file his habeas petition. Instead, he filed that petition on March 2, 2009 - nearly two years and four months too late. Singleton did file a habeas petition in state court on March 16, 2007, but by then the statute of limitations for his federal petition had already run. Singleton also waited six months from the time his petition in state court was denied until he filed his petition in federal court. He is not entitled to statutory tolling, and there ...