Krasky v. Bolin

Background

Edward Richard Krasky petitioned under 28 U.S.C. § 2254 for federal review of his state criminal case. United States Magistrate Judge Tony N. Leung recommended denying the petition and Krasky’s application to proceed without paying the filing fee, and dismissing the action. Krasky objected. He also asked the court to appoint counsel and to classify documents about his mental health as confidential. Because Krasky objected, the district court reviewed the recommendation independently.

Timeliness

The court held that the petition was untimely under the one-year deadline in the Antiterrorism and Effective Death Penalty Act. Judgment in Krasky’s criminal proceeding was entered on April 11, 2019. Because he did not file a notice of appeal within the applicable 90 days, the judgment became final on July 10, 2019, and the federal deadline expired on July 10, 2020. Krasky did not file his federal petition until 2023.

The court rejected Krasky’s argument that a state petition filed in April 2022 made his federal petition timely. A properly filed state post-conviction or other collateral proceeding can pause the federal deadline, but it cannot restart a deadline that already expired. The court also stated that a state petition filed in April 2021 did not pause the deadline for the same reason.

Krasky additionally argued that state action created an obstacle because he was not told that he could challenge his guilty plea. The court found that he had not raised this argument in his original petition, and therefore had waived it by raising it only in his objection. The court further stated that Krasky did not identify what or who created the alleged obstacle or explain how a lack of knowledge about a legal defense prevented him from filing a federal petition.

Actual-Innocence Exception

The court considered whether an actual-innocence exception could overcome the expired deadline. That exception requires new reliable evidence that was not presented at trial and that would make it so no reasonable juror could have found the petitioner guilty beyond a reasonable doubt.

The court concluded that Krasky relied on evidence available before or during his guilty plea, rather than new evidence. It also found that speculation about testimony that might have been presented did not establish actual innocence. The court noted Krasky’s acknowledgment of the victim’s statement, his admissions during the plea hearing, and his failure to challenge the accuracy of the factual basis for his guilty plea during post-conviction review. Based on the record, the court could not conclude that no reasonable juror would have found him guilty of the crime to which he pleaded guilty.

Other Motions and Disposition

The court overruled Krasky’s objection and accepted the Report and Recommendation. It denied the petition, denied the application to proceed without paying the filing fee, and dismissed the action. It also declined to issue a certificate of appealability, which is a document required for certain appeals in federal habeas cases; the opinion does not state a separate explanation for that disposition beyond accepting the recommendation.

The court denied Krasky’s motion for appointed counsel as moot. It granted his two motions to classify specified mental-health documents as confidential and ordered the clerk to designate the identified affidavits and medical records as confidential.