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McGinn v. Heimgardner

United States District Court, Tenth Circuit

June 11, 2013

CARLON D. McGINN, Petitioner,


RICHARD D. ROGERS, District Judge.

The court previously screened this petition for writ of habeas corpus and ordered Mr. McGinn, a state prisoner, to satisfy the filing fee. He was also ordered to submit his petition upon the appropriate forms and show cause why this action should not be dismissed due to his failure to exhaust state remedies, procedural default in state court, and failure to file this federal application within the statute of limitations. Mr. McGinn has paid the filing fee and submitted his petition upon court-approved forms for filing a habeas petition pursuant to 28 U.S.C. § 2254 as required. The court has thoroughly reviewed the new petition and its attached exhibits together with filings in his Kansas collateral proceedings and a relevant Colorado state court opinion available on-line. In 2001 Mr. McGinn committed criminal offenses in Colorado, then committed serious offenses in Kansas, and finally committed more offenses and violated his probation in Colorado. His allegations and exhibits do not present a clear chronology of his various state prosecutions and custody changes. However, the court is not compelled to expand the record to develop a complete chronology because the only crucial issue at this juncture is whether or not he has established that he is entitled to equitable tolling. The court has no difficulty concluding from the record presently before it that he has not. Accordingly, this action is dismissed as time-barred.


The factual background begins with Mr. McGinn in custody in Adams County, Colorado in connection with theft and burglary charges in Case No. 01 CR 448. Then in May 2001, Mr. McGinn was charged in Sedgwick County, Kansas with one count of rape of a child under 14 years of age and one count of aggravated criminal sodomy. On June 25, 2001, the Sedgwick County Sheriff's Department faxed a request to petitioner's Colorado custodian to place a hold on him for extradition on the Kansas charges; and on July 6, 2001, the Adams County Sheriff's Department complied. In July, August and September 2001, reviews of the extradition request and "Gov. Warrant" were conducted in Adams County, and petitioner was held for extradition in addition to the Colorado charges. On August 9, 2001, Mr. McGinn was sentenced to probation for 4 years in Colorado Case No. 01 CR 448 upon his plea of guilty to the theft charge. At the September 2001 "Fugitive from Justice" type "extradition hearing" in the Adams County District Court (Case. No. 01 CR 1500), the extradition case was dismissed on petitioner's request with Mr. McGinn and his counsel present because "Governor's Warrant has not been received from Kansas." Petition (Doc. 3) Exh. H. Mr. McGinn was released from the Colorado county jail on probation on September 13, 2001. Within days, he apparently committed new offenses in Colorado and was arrested in Adams County for probation violation in Case No. 01 CR 448. Petitioner's Exhibit M indicates that on February 26, 2002, he was sentenced to a three-year Colorado prison term on charges including theft and assault in case No. 01 CR 2183.[1] On March 14, 2002, his probation in Case 01 CR 448 was revoked, and he was sentenced to the Colorado Department of Corrections for three years to run concurrent to his sentence in Case 01 CR 2183.

Mr. McGinn does not provide details as to what happened next or over the subsequent 7 months with respect to his Kansas charges. He alleges that on March 22, 2002, he was picked up by the State of Kansas and exhibits an affidavit from the Records Supervisor at the Adams County Detention Facility to that effect (Exh. M). However, he does not describe any events that occurred in Kansas between then and when he was "arrested" on the Kansas charges, which he alleges was not until October 30, 2002. He exhibits a printout he obtained in 2009 that does not indicate its origin or a case number. It lists Complaint/Information" and "warrant issued" next to March 28, 2001 and "Warrant Retd" and "Arrested" next to October 30, 2002.[2]

On the other hand, the record plainly shows the following events. On March 25, 2003, Mr. McGinn pled guilty to the Kansas charges; and on May 22, 2003, he was sentenced to 554 months on the rape conviction and 109 months on the aggravated criminal sodomy conviction. See McGinn v. Kansas, 259 P.3d 749, 2011 WL 43578109, *1 (Kan.App., Sept. 16, 2011), rev. denied (Kan. Mar. 8, 2012). Mr. McGinn did not appeal his Kansas convictions or sentences. He was returned to Colorado to complete service of his Colorado sentence(s). He "was paroled on his Colorado conviction sometime prior to July 19, 2004." McGinn v. Colorado, 2010 WL 4318564 at *1. On July 19 or 20, 2004, Mr. McGinn "was moved to a Kansas detention facility... pursuant to an outstanding Kansas detainer, " where he began serving his Kansas sentences. Id.

On October 14, 2009, more than 6 years after he was sentenced in Kansas and 5 years after he was taken into Kansas custody to serve his Kansas sentences, Mr. McGinn filed a petition pursuant to K.S.A. 60-1507. The state district court appointed counsel to represent him. Petitioner claimed that the State of Kansas had no jurisdiction over him at the time of his plea because there was a violation of the federal and the Kansas Interstate Agreement on Detainers Acts (IADA), and that trial counsel was ineffective for failing to inform him of it. The Kansas district court held a preliminary hearing and denied his petition as untimely under the one-year limitations period in K.S.A. 60-1507(f)(1). McGinn v. Kansas, 259 P.3d 749 at *1-*2. McGinn appealed to the KCA, where he argued that his 60-1507 petition should have been construed as a motion to withdraw his guilty plea, and should not have been summarily denied. Id. The KCA affirmed, finding that Mr. McGinn had not explained why he failed to file his 60-1507 petition in a timely manner, and had not raised the issue of construing his motion as one to withdraw plea before the district court. The Kansas Supreme Court denied review on March 8, 2012.


In its prior Order, the court found that Mr. McGinn's Kansas convictions challenged in this petition became "final" as that term is used in 28 U.S.C. § 2244(d)(1) in 2003. More precisely, since he was sentenced on May 22, 2003, and under Kansas law a defendant in 2003 had 10 days after judgment to appeal, petitioner's convictions became final on June 1, 2003. See K.S.A. § 22-3608(a), (c). It follows that Mr. McGinn had until June 1, 2004, to file his application for federal habeas corpus relief challenging his Kansas convictions. As petitioner was informed in the court's prior order, if he did not present facts in his new petition indicating that the statute of limitations in this case was tolled between June 1, 2003 and June 1, 2004, either by statute or by equitable tolling, this action is time-barred.

Petitioner presents no facts to show his entitlement to additional statutory tolling. His 60-1507 motion filed in 2009 had no tolling effect because it was filed years after the limitations period had already expired. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).

In the court's prior order, petitioner was advised of the standards regarding equitable tolling and that it is available only "in rare and exceptional circumstances." Petitioner argues that he is entitled to equitable tolling on several grounds, all of which are little more than rearguments of his underlying claims that a violation of the IADA occurred that resulted in the trial court having no jurisdiction. The grounds he asserts are that: he was not aware until June 2009 that no governor's warrant had been issued by Kansas and that there was an IADA violation; his appointed counsel in Colorado knew of the Kansas charges and "requested to extradite petitioner to Kansas" but hid from him that no governor's warrant existed and there was an IADA violation; he entered his plea based on advice of counsel that the plea agreement was lawful but the court lacked jurisdiction due to the IADA violation; his appointed attorneys in Colorado and Kansas, the prosecutor, and the Kansas trial court knew of the IADA violation and the court's lack of jurisdiction, "but all of them hid this fact" from him. He contends that the failure to present his claims in state and federal court in a timely manner was due not to his own negligence or lack of diligence, but to the negligence of his Colorado and Kansas counsel, the prosecutor, and the court in suppressing information and "documentation indisputably proving the (IADA) violation" in order to secure his illegal conviction. Petitioner also claims that the state actors in this case from Colorado and Kansas acted deliberately, feloniously, and in concert to keep the IADA violation information out of the record in order to prevent him from timely filing his 60-1507 motion and this federal petition.

The court finds that these allegations fall far short of establishing Mr. McGinn's entitlement to equitable tolling for several reasons. First, petitioner's allegations and exhibits are not sufficient to "indisputably" establish any violation of the IADA. Second, petitioner's allegations that his appointed counsel, the prosecution, and the trial court knew of an IADA violation and intentionally withheld that information from him are nothing more than conclusory statements or speculation, particularly in light of the court's prior finding. Third, there are indications in the record that Mr. McGinn was or should have been cognizant while he was in custody in Colorado that he had the right to pursue speedy disposition of the Kansas charges. His appellate brief indicated that he refused to waive extradition in 2001 and "refused to sign and request Final Disposition" of a detainer in April 2002. Further, if a detainer was filed against Mr. McGinn while he was confined in Colorado as he alleges, the IADA mandated that his Colorado custodian inform him of his rights under the IADA and that the detainer be served upon him and contain that information in writing. In any event, the IADA was published statutory law at the time, and petitioner's claimed ignorance of that law, even if true, is simply not grounds for equitable tolling.

The court need not discuss petitioner's allegations that failure to consider his claims will result in a fundamental miscarriage of justice and manifest ...

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