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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION (at Frankfort) KEATH BRAMBLETT, Petitioner, V. LaDONNA THOMPSON, Director, Kentucky Department of Corrections, et al., Respondents. *** *** ) ) ) ) ) ) ) ) ) ) ) ***

Civil Action No. 3: 09-39-DCR

MEMORANDUM OPINION AND ORDER

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This matter is pending for consideration of Petitioner Keath Bramblett's motion to set aside this Court's Judgment entered November 19, 2009. [Record No. 13] In support of this motion, Bramblett's counsel asserts that his failure to response to the Defendant's motion to dismiss [Record No. 8] should be excused because he was unaware of the Court's Order extending until November 13, 2009, the time within which he could respond to the motion to dismiss. [Record No. 9] While Bramblett's counsel does not deny receiving the Respondent's motion to dismiss, he argues that his failure to file a timely response should be excused because of a mistake in calendering the appropriate response date. Having reviewed the Petitioner's motion, the Court believes that good cause has not been demonstrated to support the relief sought. In addition to the fact that the Petitioner's counsel has not shown that his conduct constitutes excusable neglect, the Court has again reviewed the

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underlying merits regarding the Petitioner's claims of equitable tolling and finds that it is without merit. As a result, the motion to set aside the Judgment under Rule 60(b)(1) will be denied. I. Lawanda Raines disappeared in approximately 1989. In March 2001, Bramblett confessed to her murder and led police to a rural area of Owen County were he had disposed of Raines' body. [Record No. 1; attached Kentucky Court of Appeals Opinion] Bramblett entered a guilty plea to charges of murder, tampering with physical evidence, and being a second-degree persistent felony offender on August 28, 2001. In exchange for the plea, the state prosecutor recommended an aggregate sentence of forty years imprisonment which was imposed on September 25, 2001. Bramblett did not file direct appeal of his conviction and sentence. Instead, nearly five years later (September 13, 2006), Bramblett, through counsel, filed a motion with the trial court pursuant to Rule 11.42 of the Kentucky Rules of Criminal Procedure. In seeking to avoid the three-year limitations period under this rule, the Petitioner argued that he was unaware that he could file a post-conviction motion under this rule and spent nearly three years filing incorrect motions.1 In attempting to explain his failure to timely file his Rule 11.42 motion, Bramblett asserted that the time period was equitably tolled because he was wholly unaware of the rules allowing post-conviction relief. He further claimed that he first learned that such relief was

According to the Court of Appeals of Kentucky, Bramblett filed a motion for production of all court records in August 2003. In January 2005, Bramblett filed an original action in the court of appeals seeking a writ of prohibition to prevent enforcement of his sentence. Bramblett then unsuccessfully sought leave from the Supreme Court of Kentucky to file a belated motion for discretionary review. -2-

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available when he hired his current attorney nearly five years following his conviction in the Owen Circuit Court. Citing Dunlap v. United States, 250 F.3d 1001 (6th Cir. 2001), the Court of Appeals of Kentucky rejected the argument that Bramblett's ignorance of legal requirements constituted grounds for equitable tolling. We are not persuaded that the Dunlap factors balance in Bramblett's favor. We note that Dunlap addressed a petitioner's ignorance of the requirement for filing a federal habeas corpus petition within the one-year statute of limitations. Dunlap, 250 F.3d at 1004, citing 28 U.S.C.

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