Opinion
Civil Action No. 03-3460-CM.
December 2, 2004
MEMORANDUM AND ORDER
This matter is before the court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner confined at the Lansing Correctional Facility, proceeds pro se. Respondent filed a Motion to Dismiss the petition on statute of limitations grounds (Doc. 14) and petitioner has responded to the motion (Doc. 17).
I. Procedural History
On March 18, 1998, petitioner was convicted by a jury of three counts of rape in violation of Kan. Stat. Ann. § 21-3502(1)(a), Sedgwick County Case Nos. 97 CR 1534 and 97 CR 2038 (Consolidated). On April 21, 1998, petitioner was sentenced to a controlling term of 712 months in the Kansas Department of Corrections.
On February 18, 2000, petitioner's convictions were affirmed by the Kansas Court of Appeals. State v. Peyton, 996 P.2d 850 (Kan.App. 2d. 2000) (Table). The Kansas Supreme Court denied review on May 2, 2000.
On April 27, 2001, petitioner filed for post-conviction relief pursuant to Kan. Stat. Ann. § 60-1507 in the District Court of Sedgwick County, Kansas, Case No. 01-C-1408. Petitioner alleged (1) that he was denied his right to the effective assistance of counsel, in violation of his Sixth Amendment right under the United States Constitution, and (2) that the trial court abused its discretion by denying the defense a reasonable continuance to prepare for trial, and did in effect cause counsel to render ineffective assistance.
On January 2, 2002, the District Court (Clark, J.) issued an "Order Denying Relief Pursuant to K.S.A. 60-1507." On January 24, 2003. The Kansas Court of Appeals affirmed the district court's denial of post-conviction relief. Peyton v. State, 62 P.3d 1112 (Kan.App. 2d 2003) (Table). The Kansas Supreme Court denied review on March 24, 2003.
On December 3, 2003, petitioner filed the instant petition for federal habeas relief pursuant to 28 U.S.C. § 2254. Petitioner signed his application for federal habeas relief on November 25, 2003.
II. Statute of Limitations
Petitioner filed this petition for writ of habeas corpus subsequent to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Review of the petition, therefore, is governed by AEDPA. Williams v. Taylor, 529 U.S. 420, 429 (2000); see also Lindh v. Murphy, 521 U.S. 320, 326-327 (1997) and 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). 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 claim 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).
In this case, petitioner's convictions were affirmed by the Kansas Court of Appeals on February 18, 2000, and review was denied by the Kansas Supreme Court on May 2, 2000. Petitioner's conviction was therefore final on July 30, 2000, the time when his application for certiorari to the United States Supreme Court expired.
Accordingly, the one-year statute of limitations began running July 31, 2000, and ran for 270 days before petitioner filed his § 60-1507 motion on April 27, 2001. The statute of limitations was tolled until March 24, 2003, when the Kansas Supreme Court denied review of petitioner's § 60-1507 proceeding. Petitioner filed this action December 3, 2003. Even if the court counted November 25, 2003, the date petitioner signed his application for federal habeas relief and presumably handed it to prison officials for mailing, petitioner would still be well beyond the one-year statute of limitations. Thus, petitioner's action was filed at least 150 days after expiration of the one-year period for filing a federal habeas corpus action. 28 U.S.C. § 2244(d)(1).
The following illustrates the time line within which petitioner could have filed his § 2254 petition:
May 2, 2000 — State conviction final.
July 31, 2000 — § 2244(d)(1) limitations period begins to run.
April 27, 2001 — After 270 days, limitations period is tolled upon filing of § 60-1507 action.
March 24, 2003 — Tolling ends when the Kansas Supreme Court denies review of § 60-1507 action.
March 25, 2003 — Limitations period begins to run, with 95 days remaining.
The statute of limitations is not tolled during the time to petition the United States Supreme Court for certiorari concerning a denial of post-conviction relief. Rhine v. Boone, 182 F.3d 1153, 1156 (10th Cir. 1999), cert. denied, 528 U.S. 1084 (2000).
June 28, 2003 — Statute of limitations expires.
Petitioner signed his application for federal habeas relief on November 25, 2003, 150 days after the statute of limitations expired.
The court recognizes that the limitations period is not jurisdictional and may be subject to equitable tolling. However, equitable tolling "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). Petitioner has not shown that extraordinary circumstances existed that delayed his timely filing of an application for federal habeas relief with this court. Finding petitioner's habeas action was filed after the statute of limitations expired and, further, finding no basis upon which to toll the statute of limitations, petitioner's claims are barred by § 2244(d)(1).
IT IS THEREFORE ORDERED that respondent's Motion to Dismiss (Doc. 14) is granted. Accordingly, petitioner's Motion for Judgment (Doc. 12) and Motion for Declaratory Judgment (Doc. 18) are denied as moot. This case is hereby dismissed.