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Clemons v. State

April 25, 2008

MARCUS D. CLEMONS, APPELLANT,
v.
STATE OF KANSAS, APPELLEE.



Appeal from Sedgwick District Court; PAUL W. CLARK, judge.

SYLLABUS BY THE COURT

1. Interpretation of a statute is a question of law over which an appellate court has unlimited review.

2. The 1-year limitation period provided in K.S.A. 60-1507(f)(1) includes a 1-year grace period for all pre-existing claims from the date that provision became effective.

3. Because the Kansas Legislature has not enacted a statutory tolling provision in K.S.A. 60-1507, and has instead provided for extension of the 1-year limitation period upon a showing of manifest injustice, equitable tolling is unavailable in a K.S.A. 60-1507 action.

4. On the facts of this case it is held: (1) The time limitation set forth in K.S.A. 60-1507(f)(1) was not tolled during the pendency of the movant's petition for a writ of habeas corpus under 28 U.S.C. § 2254 (2000); (2) The movant did not present a substantial issue requiring an evidentiary hearing on his claims of manifest injustice; and (3) The district court did not err in dismissing the movant's untimely K.S.A. 60-1507 motion.

The opinion of the court was delivered by: Buser, J.

Affirmed.

Before BUSER, P.J., GREEN and CAPLINGER, JJ.

Marcus D. Clemons appeals the denial of his pro se K.S.A. 60-1507 motion filed in Sedgwick County District Court. The district court's denial was based in part on Clemons' failure to file his motion within the 1-year limitation period provided in K.S.A. 60-1507(f)(1). Clemons does not deny that he filed his motion beyond the 1-year limitation period. He contends the 1-year limitation period was equitably tolled during the time his pro se habeas corpus petition under 28 U.S.C. § 2254 (2000) was pending in the United States District Court for the District of Kansas.

Because the Kansas Legislature has not enacted a statutory tolling provision in K.S.A. 60-1507, and has instead provided for extension of the 1-year limitation period upon a showing of manifest injustice, we find equitable tolling is unavailable in a K.S.A. 60-1507 action. We also find that Clemons did not present a substantial issue requiring an evidentiary hearing on his claims of manifest injustice. Accordingly, we affirm the district court's denial of Clemons' untimely K.S.A. 60-1507 motion.

Factual and Procedural Background

On April 19, 2002, the Kansas Supreme Court affirmed Clemons' convictions for first-degree murder, attempted first-degree murder, and criminal possession of a firearm. See State v. Clemons, 273 Kan. 328, 45 P.3d 384 (2002). On May 14, 2002, the mandate issued, and Clemons did not petition the United States Supreme Court for a writ of certiorari to the Kansas Supreme Court.

One year later, on May 12, 2003, Clemons filed a pro se habeas corpus petition under 28 U.S.C. § 2254 in the United States District Court for the District of Kansas. See Clemons v. McKune, 2004 WL 3171794 (D. Kan. 2004). Clemons challenged the sufficiency of the evidence and the validity of his jury trial waiver, both issues which he also raised on direct appeal. 2004 WL 3171794, at *1. On November 8, 2004, the federal district court denied the petition on the merits. 2004 WL 3171794, *2-*5. Clemons then appealed to the United States Court of Appeals for the Tenth Circuit. See Clemons v. McKune, 2006 WL 1532014 (10th Cir. 2006).

On August 5, 2005, while Clemons' appeal was pending before the Tenth Circuit, he filed the present K.S.A. 60-1507 motion in Sedgwick County District Court. Clemons noted the ongoing federal habeas corpus litigation, and he correctly stated that the issues raised in his K.S.A. 60-1507 motion had not been presented to any other court. Among these issues were ...


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