Opinion
Case No. 99-3382-DES
July 20, 2001
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for 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 El Dorado Correctional Facility, proceeds pro se.
Respondents filed a motion to dismiss the petition on statute of limitations grounds (Doc. 5) and petitioner has responded to the motion (Doc. 7).
PROCEDURAL HISTORY
In November of 1992, petitioner entered an Alford plea to amended charges of second degree murder and aggravated robbery. The Kansas Supreme Court affirmed the conviction on December 8, 1995. State v. Wallace, 258 Kan. 639 (1995). Petitioner's judgment became final on March 8, 1996, after the time for petitioning the United States Supreme Court for certiorari expired. See Supreme Court Rule 13.1 (90 days to file petition for writ of certiorari to review criminal judgment entered by state court of last resort). Petitioner's first application for state collateral review of his conviction was filed April 17, 1997, pursuant to K.S.A. 60-1507. The district court denied the motion June 3, 1997, and petitioner appealed. In October of 1997, petitioner moved to dismiss his own appeal and filed a second K.S.A. 60-1507 motion in the district court. On February 27, 1998, the district court denied the second K.S.A. 60-1507 motion. The Kansas Court of Appeals affirmed that denial June 25, 1999, and the Kansas Supreme Court denied review on September 28, 1999. Petitioner then commenced this action on December 8, 1999.
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). 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), cert. denied, 525 U.S. 891 (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 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).
The statute of limitations began running April 24, 1996, and ran for 357 days before petitioner filed his first 60-1507 motion on April 17, 1997. The statute of limitations was tolled until September 28, 1999, when the Kansas Supreme Court denied review of petitioner's second 60-1507 proceedings. Petitioner filed this action December 8, 1999, with 429 days having run under the statute of limitation.
Thus, petitioner's action was filed 63 days after expiration of the one year period for filing a federal habeas corpus action. 28 U.S.C. § 2244(d)(1). The following chart illustrates the time line within which petitioner could file his § 2254 petition.
March 8, 1996 State conviction final pursuant to 28 U.S.C. § 2244(d)(1)(A).
April 25, 1996 § 2244(d)(1) limitations period begins to run.
April 17, 1997 After passage of 357 days, limitations period is tolled upon filing of first 60-1507 action.
September 28, 1999 Tolling ends when the Kansas Supreme Court denies review of second 60-1507 action.
September 29, 1999 Limitations period begins to run, with 8 days remaining.
October 6, 1999 Statute of limitations expires.
This action was not filed until December 8, 1999, 63 days after the statute of limitations expired.
While not entirely clear, petitioner may be arguing that the statute of limitations must be tolled during the ninety days within which to petition for certiorari from the decision denying state post-conviction relief and/or until he received notice of the state court decisions. 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). Additionally, 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), cert. denied, 121 S.Ct. 1195 (2001). Petitioner has not shown that extraordinary circumstances existed that delayed his receipt of notice of the state court decisions.
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).
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that respondents' motion to dismiss (Doc. 5) be granted.
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.