United States District Court, D. Kansas
CHARLES L. JONES, Petitioner,
JAMES HEIMGARTNER, et al., Respondents.
MEMORANDUM AND ORDER
SAM A. CROW, District Judge.
The court previously screened this federal habeas corpus petition, tentatively found facts indicating it is untimely, and ordered Mr. Jones to show cause why this action should not be dismissed as time-barred. Mr. Jones filed a Response (Doc. 8) in which he argued that this petition should not be dismissed as time-barred because it is an amendment to his prior petition that is entitled to a file date of March 28, 2003, pursuant to the prison mailbox rule. He also argued that he is entitled to equitable tolling because he diligently pursued his claims and reargued that he is entitled to the actual innocence and miscarriage of justice exceptions. The court issued a limited show cause order to respondents, who filed a Response to Order (Doc. 16) contending that the petition is time-barred. Respondents also filed a Motion to Dismiss for failure to exhaust state remedies. Petitioner responded to both and filed a Motion for Stay and Abeyance. Having considered all materials filed, the court dismisses this action as time-barred.
In 2000, Mr. Jones was convicted upon trial by jury of First Degree Premeditated Murder and sentenced to "Life without parole for 25 years." His conviction was affirmed on direct appeal and his petition for writ of certiorari was denied by the United States Supreme Court on October 21, 2002.
On July 9, 2004, Mr. Jones filed his first state post-conviction motion pursuant to K.S.A. 60-1507. The motion was denied as untimely, the denial was reversed on appeal, and counsel was appointed. The district court then held an evidentiary hearing and denied the petition on the merits. Mr. Jones appealed to the Kansas Court of Appeals (KCA), which affirmed on March 27, 2009. Jones v. State, 203 P.3d 739 (Kan.App. 2009)(hereinafter " Jones II"). The Kansas Supreme Court (KSC) denied review on January 7, 2010.
In June 2009 while petitioner's prior collateral appeal was pending, Mr. Jones filed a Motion to Correct Illegal Sentence pursuant to K.S.A. § 22-3504(1). The trial court summarily denied relief. Petitioner appealed to the KSC, which according to him "conducted a de novo review." The KSC affirmed on August 2011)(hereinafter " Jones III"). Petitioner filed a petition for writ of certiorari, which the U.S. Supreme Court denied on January 17, 2012.
On February 24, 2012, Mr. Jones executed this 52-page petition containing 17 claims with over 50 pages of attached exhibits.
Unbeknownst to this court, on November 1, 2012, Mr. Jones filed another motion pursuant to K.S.A. 60-1507, which the state appellate court recently described as "his fourth attack on his conviction." Jones IV, 321 P.3d at 799, *1.
Upon screening the instant petition, this court found that petitioner's conviction became "final" on October 21, 2002; that the statutory one-year limitations period commenced the following day; and that the time ran unimpeded until it expired on or about October 22, 2003. Thus, Mr. Jones did not file a tolling-type motion until 8½ months after the federal limitations period expired.
Petitioner filed a Response (Doc. 8), two supplements, and two motions. The court entered a show cause order to respondents limited to the question of whether or not this petition should be dismissed as time-barred. Respondents filed a Response to Order (Doc. 16) arguing that the instant petition is time-barred, to which petitioner filed a reply (Doc. 17). Respondents later filed a Motion to Dismiss (Doc. 18) as time-barred or for failure to exhaust, having discovered Mr. Jones' collateral appeal currently pending in state court. In response to the Motion to Dismiss, Mr. Jones filed a Response (Doc. 19) and a Motion for Stay and Abeyance (Doc. 20).
Mr. Jones argued in his federal petition that its untimeliness should be excused because on March 28, 2003, he "filed a 2254 petition and motion to stay & abeyance to exhaust state remedies" in this court that was never decided, and that the instant petition is an amendment that relates back to his 2003 petition. The court found that these allegations were not adequately substantiated and were refuted by its own records containing no evidence of any filing in federal court by Mr. Jones in 2003 or any year prior to 2012. In addition, the court noted that a premature federal petition filed in 2003 would have had no tolling effect upon the statute of limitations. The court rejected petitioner's amendment argument and his assertions of actual innocence and fundamental miscarriage of justice. The standards for equitable tolling were set forth, and Mr. Jones was given the opportunity to allege additional facts establishing his entitlement to equitable tolling or to show cause why this action should not be dismissed as time-barred.
In response to the court's show cause order, petitioner again argued that the untimeliness of the instant petition must be excused because he filed a petition and motion to stay in 2003 that are still pending. He invoked the prison mailbox rule and argued that the court must deem the file date of these pleadings as in 2003. In support, he provided the following allegations and exhibits. On March 28, 2003, he "handed his federal 2254 petition and Motion to Stay to exhaust state remedies" addressed to this court to a correctional officer at the Hutchinson Correctional Facility (HCF) for deposit in the prison's mailing system. He then concentrated on exhausting his state court remedies. He attached to the instant federal petition a copy of a two-page handwritten 2254 petition (Exh. J1), and a one-page handwritten "Motion to Stay and Abeyance" (Exh. J2). In his 2003 petition he set forth 7 claims regarding his waiver hearing. ...