United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
Upon screening this pro se petition for writ of habeas corpus, the court entered a Memorandum and Order requiring Mr. Bell to satisfy the statutory filing fee and submit his petition upon forms in which he showed exhaustion of state court remedies and that his procedural default in state court should be excused. In addition, petitioner was ordered to show cause why this action should not be dismissed as time-barred. In response, petitioner paid the filing fee and submitted his petition upon forms as directed with 125 pages of attachments. Having examined the materials filed by Mr. Bell, the court finds that petitioner has failed to show good cause for the late filing of his federal petition, failed to show exhaustion, and failed to overcome the procedural default of his claims. Accordingly, this action is dismissed.
I. FAILURE TO SHOW THAT PETITION SHOULD NOT BE DISMISSED AS TIME-BARRED
In its prior Memorandum and Order, the court set forth the following background facts:
In 2003, Mr. Bell was convicted upon trial by jury in the District Court of Sedgwick County, Kansas of first-degree premeditated murder and sentenced to life without parole for 25 years. He appealed to the Kansas Supreme Court (KSC), which affirmed on October 28, 2005.
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State court records indicate that Mr. Bell filed at least two state post-conviction motions. On October 4, 2006, he filed his first pro se motion pursuant to K.S.A. 60-1507. The trial court denied the motion following a non-evidentiary hearing, and Bell appealed to the Kansas Court of Appeals (KCA).
On October 26, 2011, Mr. Bell filed a second 60-1507 motion in which he contended that "his trial counsel was ineffective for failing to request a competency examination." Id. "Without holding a hearing or appointing counsel for Bell, the district court dismissed the motion as impermissibly successive and untimely...." Id. The KCA found that Bell had "effectively raised and then abandoned" his "successive claim based on the absence of a competency examination before his trial." Id. at *2.
The KCA affirmed on June 14, 2013, and the KSC denied review on November 22, 2013. The instant federal habeas corpus petition was electronically filed on April 7, 2014
Based on these tentative facts, this court previously found that Mr. Bell's federal petition appeared to be time-barred citing 28 U.S.C. § 2244(d)(1) and (2). The court explained its calculations as follows. Mr. Bell's conviction became "final" on January 26, 2006, which was ninety days after completion of his direct appeal, and the limitation period began on that date and "ran without interruption until Bell filed his first 60-1507 motion on October 4, 2006." At "that point 251 days of the one-year period had expired, and 114 days remained." The limitations period was then tolled during the pendency of petitioner's two state collateral proceedings, but recommenced when his latest state post-conviction proceedings concluded on November 22, 2013. It then "ran unimpeded until it expired 114 days later on March 16, 2014." As noted, Mr. Bell did not file his federal petition until April 7, 2014.
Mr. Bell was notified that without additional tolling, his federal petition was subject to dismissal as time-barred and that he must show exceptional circumstances in order to be entitled to equitable tolling. As Mr. Bell was informed, a petitioner seeking equitable tolling bears the burden of establishing that he diligently pursued his claims throughout the period he seeks to toll and that "some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010); Wallace v. Kato, 549 U.S. 384, 396 (2007)("Equitable tolling is a rare remedy to be applied in unusual circumstances, not a cure all for an entirely common state of affairs."); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891 (1998); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)(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."), cert. denied, 531 U.S. 1194 (2001). He was further informed that the Tenth Circuit has stated that equitable tolling "would be appropriate, for example, when 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." Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003); Miller, 141 F.3d at 978; Gibson, 232 F.3d at 808 (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). He was ordered "to fully address the timeliness issue" in his new petition.
In response to the timeliness question in his new petition, Mr. Bell generally alleges that upon appealing "they" assign an attorney "that will not represent your interest" but "will file pointless motions... and late petitions that will enable the State to time-bar a defendant's petition." He further alleges that he "requested for each of his court-appointed appellate attorneys to preserve important issues and to file his petitions in a timely manner;" however, "the assigned attorney chose not to follow establish criminal procedure." He claims this "appears to be a common practice here in the State of Kansas." He also alleges that "during each stage of this appeal process, (he) was confronted with an attorney that either refused to preserve triable issues or failed to file petitions in a timely manner." Petition (Doc. 3) at pg. 14.
These allegations are nothing more than conclusory statements. Petitioner blames the late filing of his federal habeas corpus petition on the attorneys appointed to represent him on his appeals in state court. His exhibits indicate that he was represented by Appellate Defender Hodgkinson on direct appeal and Attorney Whalen on his first collateral appeal. However, he describes no specific act or inaction on the part of either Hodgkinson or Whalen and provides no explanation as to how either caused him to file his federal petition two weeks late or impeded him from filing on time. He generally complains that appellate counsel failed to file timely motions, but does not identify the type of motion, which attorney neglected to file it, or relevant dates including when the motion should have been filed as opposed to the date it was actually filed, together with the outcome. He certainly does not allege facts to establish that a particular appellate counsel's conduct amounted to more than "a garden variety claim' of attorney negligence." Holland, 560 U.S. at 651. Nor has Mr. Bell provided a copy of or described requests sent by him to counsel regarding each issue, or responses he received from counsel together with the approximate dates of requests and counsel responses. Prisoners bear the burden of demonstrating that exceptional circumstances hindered their effort to pursue claims, but Mr. Bell has offered nothing more than his own self-serving declarations to support his allegations that appellate counsel prevented him from raising his claims on direct and collateral appeal. The court concludes that petitioner's general allegations are simply insufficient to justify equitable tolling Cf. Miller, 141 F.3d at 978.
In addition, Mr. Bell has not described in sufficient detail his own efforts to pursue his state court remedies on these claims under the proper state procedures. He simply alleges no facts establishing that he diligently pursued his claims during the 251-day period between January 26, 2006, and the filing of his first 60-1507 motion on October 4, 2006. He likewise fails to describe how he diligently pursued his claims during the 114-day period that began when his second state post-conviction proceedings concluded on November 22, 2013, and ended on March 16, 2014. An inmate is required to allege with specificity the steps he took to pursue his federal claims. Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008); Miller, 141 F.3d at 978 ("In the final analysis, [petitioner must show] the steps he took to diligently pursue his federal claims."). In sum, Mr. Bell fails to show that his ...