Opinion
Case No. 01-3215-DES
August 17, 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 seeks review of his claim for ineffective assistance of counsel. Petitioner, a prisoner confined at the Lansing Correctional Facility, proceeds pro se.
PROCEDURAL HISTORY
On May 12, 1995, petitioner was convicted of first-degree felony-murder and possession of cocaine. On direct appeal to the Kansas Supreme Court, both convictions were affirmed on July 11, 1997. State v. Mitchell, 262 Kan. 687 (Kan. 1997).
On July 13, 1998, petitioner filed a K.S.A. 60-1507 motion alleging ineffective assistance of counsel. The motion was denied on October 6, 1999. The Kansas Court of Appeals affirmed. Mitchell v. State, No. 84,554 (Kan.Ct.App. November 22, 2000) (unpublished). On February 7, 2001, the Kansas Supreme Court denied review.
Petitioner commenced this action on May 31, 2001. Respondents' Answer and Return (Doc. 6) suggests the petition should be dismissed as untimely pursuant to 28 U.S.C. § 2244(d). Petitioner did not file a traverse.
STATUTE OF LIMITATIONS
Petitioner filed his federal petition for a writ of 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). Under § 2244(d)(1)(A), the one-year limitation period "does not begin to run until . . . the time for filing a petition for certiorari with the Supreme Court has passed." Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999). After a criminal judgment has been entered by a state court of last resort, one has ninety days within which to file a petition for a writ of certiorari with the United States Supreme Court. Sup.Ct.R. 13.1.
Additionally, 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).
DISCUSSION
Even though petitioner did not seek review by the United States Supreme Court, the limitation period began to run on October 9, 1997, ninety days after the July 11, 1997 judgment by the Kansas Supreme Court. Two hundred and seventy-seven (277) days expired before petitioner filed his K.S.A. 60-1507 motion on July 13, 1998. The limitation period was tolled from the filing of his K.S.A. 60-1507 motion until the Kansas Supreme Court denied review of the motion on February 7, 2001.
Thus, petitioner had 88 days, or until May 6, 2001, within which to file his § 2254 petition in federal court. Petitioner, however, did not place his application for federal habeas relief in the mail until May 23, 2001.
As such, petitioner's petition for a writ of habeas corpus is 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 and counsel of record.
The filing of this report and recommendation terminates the referral of this case to the undersigned.