Opinion
Case No. 99-3178-DES
August 8, 2001
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for a report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner confined at the Hutchinson Correctional Facility, proceeds pro se.
PROCEDURAL HISTORY
Petitioner's conviction for aggravated criminal sodomy was affirmed by the Kansas Court of Appeals on August 18, 1995. State v. Marble, 901 P.2d 521 (Kan. 1995). His petition for review was denied by the Kansas Supreme Court on November 7, 1995. No other state post-conviction motions were filed.
Petitioner commenced this action on May 25, 1999. On August 30, 1999, petitioner was ordered to show cause why the petition should not be dismissed as time-barred pursuant to 28 U.S.C. § 2244(d)(1). On September 27, 1999, petitioner responded to the show cause order (Doc. 5).
STATUTE OF LIMITATIONS
Petitioner filed his federal petition for habeas corpus subsequent to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and is, therefore, governed by AEDPA. Williams v. Taylor, 529 U.S. 420, 429 (2000); Lindh v. Murphy 521 U.S. 320, 326-327 (1997); Thomas v. Gibson, 218 F.3d 1213, 1219 (10th Cir. 2000). AEDPA imposes a one-year period for the filing of "an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). Where a petitioner's conviction became final prior to the enactment of AEDPA, as here, the one year limitation period runs from April 24, 1996. Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998).
The limitation period is tolled during the time "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claims is pending." 28 U.S.C. § 2244(d)(2). The limitation period is further tolled during the time for appealing the denial of post-conviction relief, regardless of whether an appeal was actually filed. Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir. 2000).
DISCUSSION
Petitioner admits in his response that he did not file this action within the statutorily imposed one-year time limit. Rather, petitioner makes three arguments for equitable tolling: (1) he is innocent based on "new evidence"; (2) he was denied access to legal materials; and (3) the state knowingly used false evidence. His "new evidence" and "false evidence" assertions are basically the same. In short, petitioner claims he is innocent because the state knowingly used false evidence.
Equitable tolling of the statute of limitations "is only available when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control." Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000); see generally Miller, 141 F.3d at 978 (requiring "specificity [of] the steps he took to diligently pursue his federal claims.").
Petitioner references "new evidence" relating to the concealment of the victim's prior arrest/conviction for prostitution. Petitioner, however, offers no specific facts concerning how it is relevant to the statute of limitations issue. Further, this "new evidence," may have been available to petitioner from a private investigator during trial. (See Doc. 5 at p. 4).
Petitioner also argues he was denied access to legal materials and that the statute of limitations should be tolled for this reason. However, petitioner supports this allegation with merely conclusory statements, not specific facts. Further, based on petitioner's own conduct, it does not appear that his investigator's possession of his case file from August 1995 until June 1999 prevented him from filing the present habeas petition on May 25, 1999.
Finding petitioner's habeas action was filed after the statute of limitations expired, and finding no basis upon which to toll the statute of limitations, petitioner's claims are barred by § 2244(d)(1).
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be dismissed.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
Copies of this Report and Recommendation shall be mailed to petitioner. A copy of both this Report and Recommendation and the Petition shall also be mailed to the office of the Attorney General for the State of Kansas.
The filing of this report and recommendation terminates the referral of this case to the undersigned.