Opinion
Case No. 99-3010-DES
July 16, 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 Lansing Correctional Facility, proceeds pro se. Petitioner challenges the validity of his 1981 kidnapping conviction.
Respondent filed a motion to dismiss this action on statute of limitations grounds (Doc. 15). Petitioner responded to the motion (Doc. 19) and also filed a motion for summary judgment (Doc. 20).
PROCEDURAL HISTORY
In March of 1981, petitioner plead guilty to an amended charge of kidnapping to facilitate flight. Petitioner did not file a direct appeal. In 1994, however, petitioner filed a motion to correct his sentence pursuant to K.S.A. 22-3504. That motion was denied and was not appealed. In May of 1995, petitioner filed a motion pursuant to K.S.A. 60-1507. The motion was denied August 17, 1995, and petitioner appealed. The Kansas Court of Appeals affirmed and the Kansas Supreme Court denied review on June 6, 1997. Petitioner then filed a second motion to correct his sentence January 21, 1998, which was denied by the district court February 9, 1998. Petitioner appealed directly to the Kansas Supreme Court and the court denied review March 28, 1998.
Petitioner commenced this action on January 13, 1999.
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); 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). 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).
Because petitioner's appeal of his 60-1507 motion was pending on April 24, 1996, the statute of limitations was tolled until the Kansas Supreme Court denied review on June 6, 1997.
The statute of limitations is not tolled pursuant to 28 U.S.C. § 2244(d)(2) during the time allowed for the United States Supreme Court to deny or accept certiorari. Rhine v. Boone, 182 F.3d 1153, 1156 (10th Cir. 1999), cert. denied, 528 U.S. 1084 (2000).
The statute of limitations ran for 229 days i.e., from June 6, 1997, until January 21, 1998, when petitioner filed a second motion to correct his sentence under K.S.A. 22-3504. That motion was denied by the District Court on February 9, 1998, and on March 18, 1998, the Kansas Supreme Court denied review.
Thus, the following time must be counted toward the statute of limitations: Between June 6, 1997, and January 21, 1998, the statute ran for 229 days. On March 18, 1998, the statute of limitations began to run again with 136 days remaining within the limitations period. Thus, the one-year statute of limitations expired on August 1, 1998. This action, however, was not filed until January 13, 1999 (or, 165 days beyond the year allowed by the statute of limitations).
The following chart illustrates the foregoing:
April 25, 1996 § 2244(d) limitations period begins to run. April 25, 1996 Limitations period tolled during appeal of 60-1507 motion.
June 6, 1997 Tolling ends upon Supreme Court's denial of review of 60-1507 proceedings.
January 21, 1998 After passage of 229 days, the limitations period tolled again upon filing of motion to correct sentence. March 18, 1998 Tolling ends upon Kansas Supreme Court's denial of review.
August 1, 1998 After passage of 165 days, the statute of limitations expires. This action was not filed until January 13, 1999, approximately 165 days after the statute of limitations expired.
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 (10th Cir. 2000); see also Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Petitioner argues for equitable tolling based upon the following circumstances. First, petitioner claims that the attorney initially working on petitioner's 60-1507 proceedings was intimidated into removing herself from his case. Petitioner claims this "forced" pro se status, combined with his ignorance of the law, constituted a government-instituted impediment which was not lifted until he filed this action. Because there is no constitutional right to an attorney in state postconviction proceedings, Coleman v. Thompson, 501 U.S. 722, 752 (1991), rehearing denied, 501 U.S. 1277 (1991), and because the allegations of intimidation are conclusory, petitioner fails to establish a governmental impediment. Furthermore, ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing. Marsh, 223 F.3d at 1220 ( quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999), cert. denied, 121 S.Ct. 1124 (2001)); see also Smith v. McGinnis, 208 F.3d 13, 18 (2nd Cir. 2000), cert. denied 121 S.Ct. 104 (2000) (petitioner's pro se status does not warrant equitable tolling).
Petitioner also argues equitable tolling based on his mental status. Petitioner states he was declared incompetent by United States District Court Judge O'Conner in 1977 and concludes the order is "still in effect." A petitioner's mental impairment may establish an extraordinary circumstance warranting tolling of the statute of limitations. Hood v. Sears, Roebuck, Co., 168 F.3d 231, 232-33 (5th Cir. 1999); see also Miller, 141 F.3d at 978 (the limitations period can be equitably tolled when extraordinary circumstances beyond the prisoner's control make it impossible to file on time.) While several circuits have held that tolling of the statute of limitations is proper for those suffering from some sort of mental incapacitation, those circuits have also made it clear that tolling only applies if the plaintiff is "in fact" impaired in such a way that the incapacitation keeps him "from understanding his legal rights and acting upon them." Miller v. Runyon, 77 F.3d 189, 193 (7th Cir. 1996), cert. denied, 519 U.S. 937 (1996); see also Lawson v. Glover, 957 F.2d 801, 805 (11th Cir. 1987), Helton v. Clements, 832 F.2d 332, 336 (5th Cir. 1987), Dautremont v. Broadlawns Hospital, 827 F.2d 291, 296 (8th Cir. 1987) and Lopez v. Citibank, N.A., 808 F.2d 905, 906-07 (1st Cir. 1987). In Biester v. Midwest Health Services, Inc., 77 F.3d 1264, 1268 (10th Cir. 1996), the statute of limitations was not tolled based on a claimed "mental incapacity" because the plaintiff had not been declared incompetent during the case, had not been institutionalized for any period of time and had demonstrated throughout the case that he "was capable of pursuing his own claim." Because petitioner provides no evidence of the extent of his incapacitation or its severity (except an order issued in an unrelated case 24 years ago) and because petitioner instituted numerous legal challenges to his conviction and sentence during the limitations period, tolling is not warranted.
Finally, petitioner argues he was denied access to legal materials and that the statute of limitations should be tolled for this reason. Compare Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999) (equitable tolling of the statute of limitations based upon lack of access to legal materials may be appropriate depending on the duration of the lack of accessability). Once again petitioner does not support this allegation with any details or supporting facts and, as such, does not establish a basis for equitable tolling.
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). In light of the foregoing, petitioner's motion for summary judgment, which challenges respondent's motion to dismiss, must be denied.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that respondent's motion to dismiss (Doc. 15) be granted and that petitioner's motion for summary judgment (Doc. 20) be denied.
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.