United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This pro se petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by Mr. Floyd, who seeks to challenge his Kansas criminal convictions. The court screened the filings, and on February 7, 2014, entered an order with tentative findings that the petition was filed after the applicable statute of limitations had expired. Petitioner was required to show cause why this action should not be dismissed as time barred. Mr. Floyd has filed his response (Doc. 3). Having considered all materials in the file, the court concludes that this action is time barred and must be dismissed.
Petitioner candidly acknowledges that the procedural history and relevant dates set forth in the court's prior screening order are correct. However, he contends that he is entitled to a much later start date for the federal statute of limitations than that determined by the court. In its prior order, the court held that the statute of limitations began running in this case on May 14, 2006, which was the date Mr. Floyd's conviction became "final" as that term is used in 28 U.S.C. § 2244(d)(1)(A). Petitioner asks the court to hold instead that his start date was "the final date he exhausted his state post-conviction remedies, being May 26, 2013." As support for this argument, he alleges that he "toiled" to prepare his state post-conviction motion during "the one year allotted under state law" and contends that the federal limitations period should therefore "be tolled during the entire time he ha(d) to file his state post-conviction remedies." He adds that he had "no control over how long court clerks" and attorneys took to "actually get an appeal docketed" and that preparation for appeal "can easily run the full one year" leaving no time "to file any federal appeal if the full time spent in state courts are not tolled."
Petitioner is not entitled to the different start date he seeks. As noted in the court's prior order, statutory tolling is only available under 28 U.S.C. § 2244(d)(2) for the time a properly filed state post-conviction action is actually "pending". This means that statutory tolling begins on the date a post-conviction motion is filed and ends on the date that state proceedings on the motion are concluded. The statute makes no provision for additional tolling for the time during which a state prisoner was "toiling" on his state court remedies but had no state post-conviction motion pending, and the court is aware of no other controlling legal authority that allows for this additional tolling. Thus, petitioner's assertion that the federal one-year statute of limitations should be tolled during all the time that the state's one-year limitations period for 60-1507 motions was running is found to have no legal basis, and the six months he allegedly spent preparing his state court application prior to its filing is not tolled. In accord: Shinton v. Wilkinson, 2014 WL 289027 (W.D. Okla. Jan. 27, 2014), COA denied, 2014 WL 3892975 (10th Cir., Aug. 7, 2014)("Petitioner's mistaken belief that he had one year from the completion of state court proceedings to file a federal habeas corpus petition, and that the six months spent preparing his state court application did not count, is simply wrong."). In the court's prior order, petitioner was accorded the appropriate amount of statutory tolling, which was from the time his state post-conviction motion was filed on February 15, 2007, to the time the post-conviction proceedings were concluded on February 25, 2013.
Under certain circumstances, a start date applies that is later than the date the conviction "became final." For example, under subsections (C) and (D) of 28 U.S.C. § 2244(d)(1), a petitioner is entitled to a later start date when there has been an intervening, retroactive change in Supreme Court law, or the discovery of a new factual predicate for a claim. However, it does not appear that petitioner could claim a later trigger date under either of these provisions. On the other hand, subsection (B) of § 2244(d)(1) allows the limitation period to begin as of "the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action." Id. Petitioner's allegations that the state court clerk failed to supply a transcript of his 60-1507 hearing and that prison officials confiscated his legal materials might liberally be construed as asserting state-created impediments. Even if so construed, these allegations lack the requisite specificity.
Petitioner's allegations and exhibits indicate that his legal materials were confiscated by prison officials around March 23, 2012, along with other non-legal property and have been withheld since that time pending investigation. These allegations are not sufficient to show an actual impediment. Section 2244(d)(1)(B) makes clear that the alleged impediment must prevent a prisoner from filing his 2254 petition. Lloyd v. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002), cert. denied, 537 U.S. 1121 (2003). Mr. Floyd does not identify any of the confiscated property and only refers to it in very general terms. Since he does not describe the property it is not readily apparent that his lack of access to any confiscated item actually prevented him from filing a timely 2254 petition.
Petitioner's allegation that the county clerk's failure to provide a transcript of his 60-1507 hearing impeded his submission of a timely 2254 petition is similarly inadequate. See Freeman v. Zavaras, 467 Fed.Appx. 770, 774 (10th Cir.), cert. denied, 133 S.Ct. 581 (2012)(petitioner's allegations that his appellate attorneys refused to provide him with documents from his case file despite several requests and that the state district court denied his requests to borrow his trial transcripts not shown to amount to unconstitutional state action or to have impeded him from filing a timely habeas petition and therefore failed to establish that § 2244(d)(1)(B) applied). There is no requirement that the transcript of a 60-1507 hearing be supplied by a petitioner in order to file a 2254 petition. Thus, the court is presented with no factual basis for finding that either the confiscation of unspecified legal materials or the county clerk's inaction actually impeded petitioner's timely filing his 2254 petition. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891 (1998)(rejecting § 2244(d)(1)(B) claim of impediment to legal materials because of lack of specificity as to alleged lack of access; Gauthier v. Higgins, 175 Fed.Appx. 174, 175 (10th Cir.), cert. denied, 549 U.S. 1003 (2006)(finding petitioner's alleged inability to pay for the transcripts did not constitute an "impediment to filing" a 2254 petition within the meaning of § 2244(d)(1)(B)); Lloyd, 296 F.3d at 634 ("equitable tolling does not excuse [the petitioner's] late filing simply because he was unable to obtain a complete trial transcript before he filed his § 2254 application."); Donovan v. Maine, 276 F.3d 87, 93 (1st Cir. 2002)("the state court's delay in furnishing the petitioner with the transcript did not establish a basis for equitable tolling."); Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001)("lack of access to a trial transcript does not preclude a petitioner from commencing post-conviction proceedings and therefore does not warrant equitable tolling.").
Furthermore, petitioner does not provide a date on which these alleged impediments were removed and implies they were never removed. Thus it appears that the very detailed and satisfactory 2254 petition he eventually managed to file was prepared in spite of these circumstances. The court concludes that Mr. Floyd is not entitled to a different start date based on a liberal construction of his allegations as asserting a state-created impediment under § 2244(d)(1)(B).
Petitioner contends that if the court rejects his argument for additional tolling while he prepared his state petition, it should find that he is entitled to equitable tolling. In support of this argument, he claims that he diligently sought to file his "federal appeal" in a timely manner but "was prevented from doing so due to extraordinary circumstances beyond his control." He sets forth the following circumstances, which he claims are extraordinary, were beyond his control, and prevented the timely filing of his 2254 petition: (1) there was a "six month overlap" during which appellate attorneys reviewed the record for appellate issues, sought records, and prepared briefs; (2) the state appellate court's opinion affirming the denial of his post-conviction motion was unpublished so that he "had no way of knowing" his federal habeas grounds and had to seek and obtain the unpublished opinion; (3) he needed time after the state court's final decision "to obtain records necessary to file his federal habeas petition;" (4) he made two unsuccessful attempts to obtain from the county clerk a transcript of the evidentiary hearing on his 60-1507 motion and had to file his 2254 petition "with vague arguments;" (5) on or around March 13, 2012, "all of his legal materials were confiscated" due to "intentional misconduct."
The Supreme Court has affirmed that § 2244(d)'s limitations period "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). "But, in doing so, the Court also affirmed that a habeas petitioner seeking equitable tolling must clear a high hurdle." Hallcy v. Milyard, 387 Fed.Appx. 858, 860 (10th Cir. 2010). As Mr. Floyd was previously informed, a litigant seeking equitable tolling bears the burden of establishing "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way and prevented timely filing." Holland, 560 U.S. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000), cert. denied, 531 U.S. 1194 (2001)(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."); Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006), cert. denied, 551 U.S. 1149 (2007). In the habeas corpus context, equitable tolling has been limited to "rare and exceptional circumstances." Gibson v. Klinger, 232 F.3d 799, 800 (10th Cir. 2000); Yang v. Archuleta, 525 F.3d 925, 929 (10th Cir. 2008)("Equitable tolling is a rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs'")(quoting Wallace v. Kato, 549 U.S. 384, 396 (2007)). In order to demonstrate that he pursued his claims diligently, the petitioner must "allege with specificity the steps he took to diligently pursue his federal claims.'" Yang, 525 F.3d at 930 (quoting Miller, 141 F.3d at 978).
The first three circumstances described by petitioner are not at all extraordinary and are found not to entitle him to equitable tolling for this reason. Preparation of state criminal or collateral appeals normally takes time, and state appellate court opinions are often unpublished. Furthermore, petitioner was given tolling credit in the court's calculations for the times during which appellate attorneys might have been preparing an appeal on his behalf because this would have occurred during the pendency of either his criminal proceedings and direct appeals or his collateral proceedings. The third circumstance is neither rare nor exceptional and lacks substance for the reason that a federal habeas corpus petitioner is not required to submit records with his 2254 petition. Petitioner does not indicate what records he sought or how not having them prevented his timely filing. The second circumstance likewise lacks factual substance. Petitioner does not reveal how long it took to obtain a copy of the unpublished court opinion or why he did not receive or request a copy from his attorney. Nor does he explain how not having it prevented him from knowing the grounds for challenging his convictions.
With respect to the fourth circumstance relied upon by petitioner, the court already found herein that his allegations regarding his failed attempts to obtain a transcript of his 60-1507 hearing are not shown to have prevented him from filing a timely 2254 petition. This ...