Opinion
Case No. 01-3391-DES
March 24, 2002
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 is a prisoner confined at Winfield Correctional Facility, Lansing, Kansas. Presently pending before the court is respondents' motion to dismiss the petition as untimely. (Doc. 12). Petitioner has filed a response to this motion. (Doc. 14).
PROCEDURAL HISTORY
On October 3, 1995, petitioner was convicted of aggravated battery in the District Court of Johnson County. (Doc. 1, p. 3; Doc. 11, p. 2). Petitioner did not file a direct appeal from his conviction. On January 19, 1996, prior to being sentenced, petitioner filed a motion pursuant to K.S.A. § 60-1507. (Doc. 11, p. 2). This motion was denied by the district court on May 8, 1996. (Transcript of Motion to Vacate, p. 154). On April 9, 1999, the Kansas Court of Appeals dismissed the appeal because K.S.A. § 60-1507 jurisdiction can only be invoked by a prisoner in custody. State v. Thao, 979 P.2d 1266 (Table) (Kan.Ct.App. 1999). Petitioner did not seek review by the Kansas Supreme Court.
Petitioner's sentence was finally executed on July 7, 1999. (Transcript of Sentencing, p. 21). On August 23, 1999, petitioner filed a "motion for ruling on K.S.A. 60-1507 motion." This motion asked the court to take judicial notice of the previous K.S.A. § 60-1507 motion filed with the court in 1996 and issue a ruling. (Doc. 8, attachment A). The motion notes that an assistant District Attorney has no objection to this request. Id.
Apparently, no ruling was ever issued in response to this motion. Instead, petitioner was ordered to pay the filing fee required for K.S.A. § 60-1507 motions and a new K.S.A. § 60-1507 motion was filed on October 28, 1999. (Doc. 8, p. 3; Doc. 11, p. 3). This motion was denied by the district court on November 19, 1999. (Doc. 11, p. 3). The Kansas Court of Appeals affirmed this decision on November 9, 2000. Thao v. State, 16 P.3d 337 (Table) (Kan.App. 2000). The Kansas Supreme Court denied the petition for review on February 6, 2001. Thao v. State, No. 00-84705-AS, 2001 Kan. LEXIS 54 (Kan. 2001).
Petitioner's counsel filed the present petition on September 21, 2001, noting that he was unable to obtain the petitioner's signature in time to meet the statute of limitation, but assuring the court the signature would be obtained at a later date. (Doc. 1, p. 6). On October 3, 2001, petitioner filed a motion to substitute the unsigned petition with a signed petition. (Doc. 4). The court granted this motion and noted that September 21, 2001 would be considered the date of filing. (Doc. 6).
STATUTE OF LIMITATIONS
Because petitioner's conviction became final prior to the April 24, 1996 enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), he was entitled to a one year equitable grace period until April 23, 1997, to file his federal habeas petition. United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). Both parties have agreed that the statute of limitations was tolled from April 24, 1996 to April 9, 1999, when petitioner was awaiting a decision from the Kansas Court of Appeals on his first K.S.A. § 60-1507 motion. See 28 U.S.C. § 2244(d)(2) (the time during which a properly filed application for state post-conviction review "shall not be counted toward any period of limitation under this subsection"). The court also finds that the limitation period was tolled from April 10, 1999 to May 9, 1999, the time during which petitioner could have sought an appeal from the denial of his first K.S.A. § 60-1507 motion to the Kansas Supreme Court. See Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000) ("regardless of whether a petitioner actually appeals a denial of a post-conviction application, the limitations period is tolled during the period in which the petitioner could have sought an appeal under state law"). 171 days elapsed between May 10 and October 27, 1999, the date on which petitioner's second motion pursuant to K.S.A. § 60-1507 was "properly filed." 28 U.S.C. § 2244(d)(2). The statute of limitation was again tolled until February 6, 2001, when the Kansas Supreme Court denied the petition for review. 225 more days elapsed until the present petition was filed on September 21, 2001. Therefore, the present petition was filed thirty-one days after the statute of limitation had run, as illustrated by the following chart:
Respondents have argued that because the original September 21, 2001 petition was not verified by petitioner, this court should consider October 2, 2001, as the date of filing. (Doc. 11, p. 5). This issue will not be revisited since this court has already entered an order setting September 21, 2001 as the filing date. (Doc. 6). The court, within its discretion, can disregard a defect in verification. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990); Bean v. Calderon, 166 F.R.D. 452, 455, n. 5 (E.D.Cal. 1996).
May 10, 1999 § 2244(d) limitations period begins to run.
October 27, 1999 Limitations period is tolled with the filing of the second § 60-1507 motion.
February 7, 2001 Limitations period resumes after the Kansas Supreme Court denies review on February 6, 2001.
September 21, 2001 Present petition filed thirty-one days after the statute of limitation runs.
Petitioner argues the statute of limitation should be tolled from August 23, 1999, the date on which he filed his "motion for ruling on K.S.A. 60-1507 motion", until February 6, 2001, the date on which the Kansas Supreme Court denied the petition for review for the second K.S.A. § 60-1507 motion. However, it is evident that the "motion for ruling on K.S.A. 60-1507 motion" was not a "properly filed post-conviction application" under the terms of 28 U.S.C. § 2244(d)(2). In order to be "properly filed", an application should conform with the rules regarding the requisite filing fee. Artuz v. Bennett, 121 S.Ct. 361, 364 (2000). Apparently, petitioner was required to restyle his "motion for ruling on K.S.A. 60-1507 motion" as an actual K.S.A. § 60-1507 motion and pay the requisite filing fee. (Doc. 8, p. 3; Doc. 11, p. 3). In addition, petitioner's "motion for ruling on K.S.A. 60-1507 motion" cannot be considered a post-conviction application or other form of collateral relief. See Adeline v. Stinson, 206 F.3d 249, 252 (2nd Cir. 2000) (petitioners cannot "create their own methods of seeking post-conviction relief by availing themselves of a state court's general motion practice").
Petitioner also argues that he is entitled to equitable tolling. Equitable tolling may be available if "a prisoner is actually innocent, when an adversary's conduct — or other uncontrollable circumstance — prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period." Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citations omitted).
The procedural history of this case demonstrates that petitioner has diligently pursued his claims. This is not a case in which the petition was filed years after the deadline; the petition was filed only thirty-one days past the one-year limitation.
In addition, the court finds that the limitation period should be equitably tolled from August 23, 1999, the date upon which petitioner filed his "motion for ruling on K.S.A. § 60-1507 motion" and October 27, 1999, the date on which his second K.S.A. § 60-1507 motion was properly filed. The "motion for ruling on K.S.A. § 60-1507" was an attempt to revive the prior K.S.A. § 60-1507 motion filed by petitioner. Although this was a misguided attempt by petitioner's counsel, equitable tolling is appropriate where the "conduct of the [respondents] has lulled the [petitioner] into inaction." Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000). When petitioner's counsel attempted to revive the previously filed K.S.A. § 60-1507 motion by filing the "motion for ruling", the assistant District Attorney acquiesced in the request. (Doc. 8, attachment A). Therefore, respondents lulled petitioner into believing that his "motion for ruling on K.S.A. § 60-1507" was the appropriate manner in which to revive his prior claims and posture the case for further appellate review. Despite the technical defectiveness of this pleading, it does demonstrate that petitioner was actively pursuing his judicial remedies.
This particular attorney error is not raised as a basis for equitable tolling nor would it suffice. See Smaldone v. Senkowski, 273 F.3d 133, 138 (2nd Cir. 2001) (attorney error is not the "extraordinary circumstance" for which equitable tolling is appropriate).
It should also be noted that petitioner may not have needed to file a second K.S.A. § 60-1507 motion had it not been for the State's request that the trial court delay sentencing until a hearing was held on petitioner's first K.S.A. § 60-1507 motion. (Transcript of Motion to Vacate, p. 2). Because the trial court granted this request and ruled on the motion approximately five months prior to sentencing, the Kansas Court of Appeals refused to hear petitioner's appeal on jurisdictional grounds. They reasoned that the trial court did not have jurisdiction to hear the motion because petitioner did not meet the "in custody" requirement of K.S.A. § 60-1507. State v. Thao, 979 P.2d 1266 (Table) (Kan.Ct.App. 1999). Once again, although defense counsel may have contributed to this error in procedural posturing, the state also played a part in creating this procedural quagmire.
In addition, petitioner has set forth a claim of actual innocence based upon his attorney's failure to present the eye witness testimony of nine witnesses who were present at the attack which led to petitioner's conviction. Although this court does not rest its application of the equitable tolling doctrine solely upon petitioner's claim of actual innocence, it does weigh in petitioner's favor. See Miller, 141 F.3d at 978 (noting that equitable tolling was not applicable where petitioner made no claim of actual innocence); Fisher v. Gibson, 262 F.3d 1135, 1145 (10th Cir. 2001) (same). It would be a different matter if petitioner's claim of actual innocence rested upon a mere allegation, but it does not. He has produced documentary evidence to bolster his claim. (Attachments to Doc. 8).
This is Mr. Thao's first federal habeas petition. While the statute of limitation protects the unquestionably important interest of assuring finality in state court judgments, a dismissal of petitioner's first chance at federal review would implicate an equally important liberty interest. See Lonchar v. Thomas, 116 S.Ct. 1293, 1299 (1996) ("Dismissal of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty"). The statute of limitation exists to ensure that petitioners do not sleep on their rights and consequently prejudice the state's ability to defend the conviction. Petitioner's case is one of those rare and exceptional circumstances where this purpose has been served, despite the technical untimeliness of the petition.
Under these circumstances, the statute of limitation should be equitably tolled. Therefore, the petition is timely.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that respondents' motion to dismiss the petition as untimely (Doc. 11) be denied. It is also respectfully recommended that respondents be ordered to fully respond to the petition within twenty (20) days of the district judge's order reviewing this matter.
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.