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Keltner v. State

United States District Court, District of Kansas

November 25, 2014

EUGENE KELTNER, Petitioner,
v.
STATE OF KANSAS, Respondent.

MEMORANDUM AND ORDER

Sam A. Crow U.S. Senior District Judge

The court previously screened this pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 and entered a Memorandum and Order finding that it appeared to time barred. The court set forth tentative facts and the pertinent statutory provisions[1] and explained its application of those provisions to the facts. Mr. Keltner was given time to file a response to dispute the court’s tentative findings or show his entitlement to either additional statutory tolling or equitable tolling. The standards for equitable were also set forth in the court’s prior order. Petitioner responded by filing a document entitled “Motion for Permission to Docket out of Time” docketed as his “Response” (Doc. 4) and a “Memorandum in Support of 2254 motion” docketed as his “Supplement” (Doc. 5). Having considered all materials in the file together with the relevant legal authorities, the court concludes that this petition was not timely filed and must be denied.

PROCEDURAL HISTORY AND BACKGROUND FACTS

The court previously set forth the procedural history of Mr. Keltner’s case, which he does not dispute. Mr. Keltner pled guilty on June 9, 2005, [2] and was convicted in Wyandotte County District Court of involuntary manslaughter and aggravated robbery. Under K.S.A. 21-4714 “a defendant’s criminal history score (was) not calculated until after the defendant has been convicted.” State v. Garcia, 295 Kan. 53, 65, 283 P.3d 165 (Kan. 2012)(J. Rosen dissenting opinion). Prior to sentencing, Keltner filed a Motion to Withdraw Plea claiming the “sentencing range exceeded the range contemplated by the parties during plea negotiations, and but for these representations, Keltner would not have entered the plea.”[3] State v. Keltner, 154 P.3d 47, 2007 WL 881953 (Kan.App. March 23, 2007)(hereinafter “State v. Keltner”). The trial court denied the motion and on August 4, 2005, sentenced Keltner to 336 months in prison. Mr. Keltner appealed the denial to the Kansas Court of Appeals (KCA). He argued that “he unknowingly entered his plea due to his trial counsel’s incompetence; thus, ‘good cause’ exists to withdraw his plea.” Id. at *2. The KCA reiterated that a trial court determining whether to allow withdrawal of a plea should utilize the “Edgar factors”[4] and evaluate whether:

“(1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made. [Citation omitted.]”

Id. at *2 (citing State v. Bey, 270 Kan. 544, 545, 17 P.3d 322 (2001)). They also set forth the correct two-prong test for review of a claim of ineffective assistance of counsel:

A two-prong test applies to set aside a guilty plea because of ineffective assistance of counsel. The defendant must prove: (1) counsel’s performance fell below the standard of reasonableness, and (2) a reasonable probability exists that, but for counsel’s errors, the defendant would not have pled guilty and would have insisted on going to trial.

Id. (citing State v. Muriithi, 273 Kan. 952, 956–57, 46 P.3d 1145 (2002)); see Strickland v. Washington, 466 U.S. 668 (1984). With respect to petitioner’s ineffective counsel claim, the KCA noted the Kansas Supreme Court (KSC) had held that:

defense counsel has an obligation to advise the defendant regarding the range of permissible penalties; however, defense counsel’s inaccurate prediction regarding the penalty does not constitute ineffective assistance of counsel.

State v. Keltner at *3 (citing State v. Solomon, 257 Kan. 212, 223, 891 P.2d 407 (1995)). With respect to the trial court’s denial of Keltner’s motion to withdraw plea, they found “the rationale of State v. Ford, 23 Kan.App.2d, 930 P.2d 1089 (1996), rev. denied 261 Kan. 1087 (1997) controlling” and reasoned as follows:

In Ford, at the time of the plea, both the prosecutor and defense counsel believed Ford had only one person felony, but Ford’s presentence investigation report subsequently revealed he had two prior person felonies. 23 Kan.App.2d at 250. The defendant argued his plea was not “intelligently” made because he relied upon the State and defense counsel’s representations regarding his criminal history. This court affirmed, noting there is no recourse for a plea “unintelligently” made.[5] 23 Kan.App.2d at 252. The court further noted that under K.S.A. 21–4707(c)(4), prior convictions discovered after a plea has been accepted are properly considered in a defendant’s criminal history at sentencing. . . .
Here, as in . . . Ford, a mutual mistake occurred as to the defendant’s criminal history score. Nevertheless, the petition to enter a guilty plea informed Keltner of the maximum penalties for aggravated robbery and involuntary manslaughter, and the trial court repeated those penalties at the plea hearing. In addition, at the plea hearing, Keltner acknowledged his guilt and recited facts to support a guilty plea on both charges. Keltner also acknowledged that no one promised him he would receive a lighter sentence or probation as an inducement to plead guilty.
Under these circumstances, we hold the district court did not abuse its discretion in denying Keltner’s motion to withdraw his plea.

State v. Keltner at *3. Mr. Keltner’s petition for review was denied by the KSC on September 27, 2007.

On December 20, 2007, Mr. Keltner filed his “first” motion pursuant to K.S.A. 60-1507. See Keltner v. State, 231 P.2d 588, *2, 2010 WL 2348690 (Kan.App. June 4, 2010), rev. denied (Kan. Sept. 21, 2011)(hereinafter “Keltner v. State”). He alleged that his trial counsel was incompetent for the same reasons asserted on direct appeal. Id. However, on June 2, 2008, he voluntarily dismissed this motion before it was decided by the trial court. Id.

On August 25, 2008, Mr. Keltner filed his second 60-1507 motion. He again claimed ineffective assistance of plea counsel on the same grounds. The State was directed to respond but argued res judicata and that the motion was successive. The trial court summarily denied the motion, finding that “Movant’s major argument has already been adjudicated” and denied by the KCA, and that the “records show defendant was represented by competent counsel, he was not misled, coerced, mistreated, or unfairly taken advantage of and his plea was fairly and understandingly made.” Id. On December 12, 2008, the KSC issued its decision in Schow which abrogated Ford. Keltner filed a timely appeal. The KCA acknowledged the holding in Schow and that it had been “decided after Keltner’s direct appeal had concluded.” Keltner v. State at *3. Schow made it clear that a mutual mistake regarding a defendant’s criminal history score is not insufficient as a matter of law to permit withdrawal of a plea, and instead may be considered a possible good cause for withdrawal under an Edgar-factors analysis.[6] Schow, 287 Kan. at 529, Syl. ¶3. Petitioner argued that Schow required reversal in his case and consideration of the circumstances underlying the “mutual mistake.”[7] The KCA ruled that Schow was not applicable “in this collateral proceeding.” Keltner v. State at *3. They emphasized that the issue of ineffective assistance of Keltner’s trial counsel had “indeed” been raised for the first time and decided on Keltner’s direct appeal and thus additionally held that “res judicata preclude(d) further consideration in a collateral proceeding.” Finally, they held that Keltner’s second 60-1507 motion raised the same ineffective counsel claims as his first; and because he had voluntarily dismissed the first, this second was properly dismissed as “successive.” Id. at *3-*4 (citing State v. Foulk, 195 Kan. 349, 404 P.2d 961 (Kan. 1965)(Under K.S.A. 60-1507(c), “a defendant who withdrew his first motion for post-conviction relief and asked that the motion be dismissed could not be heard on a second motion.”). Keltner filed a petition for review, which was denied by the KSC on September 21, 2011. The instant federal petition was executed on September 14, 2012.[8]

APPLICATION OF 28 U.S.C. § 2244(d)

Mr. Keltner’s direct criminal appeal was completed on September 27, 2007. His convictions and sentence “became final” for limitations purposes ninety days later on December 27, 2007. However, the running of the statute of limitations was immediately tolled by his already-pending first 60-1507 motion. Due to Mr. Keltner’s voluntary dismissal of that motion on June 2, 2008, it was no longer pending. The federal statute of limitations first began to run in this case the next day and ran for 84 days.

On August 25, 2008, petitioner filed his second 60-1507 motion. The statute of limitations was tolled during the entire pendency of these state collateral proceedings, which concluded on September 21, 2011. The following day the federal statute of limitations recommenced with 281 days remaining.[9] It ran without interruption until it expired on June 29, 2012. The instant federal petition was executed 76 days later.

PETITIONER’S RESPONSE

In petitioner’s Response, he describes several sets of circumstances, which he asserts entitle him to additional tolling of the statute of limitations. He alleges that he “first filed” a case in the KSC that was given Case No. 100603. Second, he alleges that when he hired attorney Billam to help him file his second, “new 1507” motion, [10] Billam advised that he must withdraw his first 60-1507 motion. Third, petitioner claims that attorney Billam was “2 months late” in notifying him that the KSC denied review. Fourth, he claims that Billam incorrectly advised him as to the start date of the federal statute of limitations in his case. Fifth, he claims that conditions of his confinement prevented him from timely filing. Finally, petitioner argues in his Supplement that his claim of ineffective assistance of counsel is meritorious and should be heard in federal court. Each of these alleged grounds for tolling is discussed hereinafter in turn.

LEGAL STANDARDS

The Tenth Circuit’s “equitable tolling cases require a double showing.” Bradford v. Horton, 350 Fed.Appx. 307, 309 (10th Cir. 2009). “First, a prisoner must show ‘extraordinary circumstances beyond his control’ prevented him from filing his petition on time, and, second, that he pursued his claims diligently.” Id. (citing Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)(citing Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)); Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008)(“Generally, equitable tolling requires a litigant to establish two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”). The Tenth Circuit has further held that, “although dismissing a prisoner’s first habeas petition is a ‘particularly serious matter, ’ we limit equitable tolling to ‘rare and exceptional circumstances.’” Bradford, 350 Fed.Appx. at 309 (citing Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003)); Penn v. Kline, 348 Fed.Appx. 344, 346-47 (10th Cir. 2009)(citing Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007)). A petitioner has the burden of establishing that he is entitled to equitable tolling. Miller, 141 F.3d at 978.

Generally, there is no constitutional right to counsel beyond the first appeal of right. See Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987). Furthermore, it has specifically been held that “[t]here is no constitutional right to an attorney in state post-conviction proceedings.” Fleming v. Evans, 481 F.3d 1249, 1255 (10th Cir. 2007)(citing Coleman v. Thompson, 501 U.S. 722, 752 (1991)); Bradford, 350 Fed.Appx. at 309 (The Tenth Circuit has “consistently recognize(d) that attorney negligence does not suffice since there is no right to counsel in post-conviction proceedings.”).[11] Courts have also reasoned “that attorney negligence is not extraordinary and clients, even if incarcerated, must ‘vigilantly oversee, ’ and ultimately bear responsibility for, their attorneys’ actions or failures.” Fleming, 481 F.3d at 1255-56 (citing Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003). The Tenth Circuit has expressly reasoned that “attorney error, miscalculation, inadequate research or other mistakes have not been found to rise to the extraordinary circumstances required for equitable tolling, ” and noted “for example, that mistakes by counsel in ‘interpreting a statute of limitations’ do not provide a basis for ‘equity [to] step in.’” Bradford, 350 Fed.Appx. at 309 (citing Fleming, 481 F.3d at 1256.); see also Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)(attorney miscalculation of statute of limitations is not grounds for equitable tolling); Merritt v. Blaine, 326 F.3d 157, 169 (3rd Cir. 2003)(applying general rule that attorney mistakes “have not been found to rise to the extraordinary circumstances required for equitable tolling”); Rouse v. Lee, 339 F.3d 238, 248 (4th Cir. 2003), cert. denied, 541 U.S. 905 (2004)(“[A] mistake by a party’s counsel in interpreting a statute of limitations does not present the extraordinary circumstance beyond the party’s control where equity should step in to give the party the benefit of his erroneous understanding.”); United States v. Martin, 408 F.3d 1089, 1093 (8th Cir. 2005)(“Ineffective assistance of counsel, where it is due to an attorney’s negligence or mistake, has not generally been considered an extraordinary circumstance [with respect to equitable tolling].”).

On the other hand, in Fleming the Tenth Circuit held that “sufficiently egregious misconduct on the part of a habeas petitioner’s counsel may justify equitable tolling of the AEDPA limitations period.” Fleming, 481 F.3d at 1256. The circumstances in Fleming illustrate “egregious” attorney misconduct”

Fleming hired counsel to represent him in state post-conviction proceedings. He subsequently made a number of inquiries as to the status of his petition and was told each time it was being prepared and would soon be filed. Aware the statute of limitations deadline was approaching, Fleming ultimately took matters into his own hands and drafted a petition with the help of a prison clerk, which he submitted to his counsel for review and filing. However, counsel did not file it until after the AEDPA deadline had passed. We concluded Fleming “ha[d] alleged enough facts to warrant, at a minimum, an evidentiary hearing to determine whether he is entitled to equitable tolling.” Id. at 1256-57. We noted Fleming was alleging more than “mere negligence” on the part of his attorney. Id. at 1256. Instead, he claimed his attorney “deceived him into believing that he was actively pursuing Mr. Fleming's legal remedies when, in fact, he was not.”

Penn, 348 Fed.Appx. at 347.

DISCUSSION

A. Additional Statutory Tolling

Petitioner’s allegations that he “first filed” Case No. 100603 in the KSC and was “later told” that he must file a 1507 in the trial court instead, are construed as an argument for additional statutory tolling. Apparently this was Mr. Keltner’s first pro se effort at challenging his sentence. The court takes notice of state court records available on-line, specifically the Kansas Appellate Courts docket for Case No. 100603. These records show this matter was an “original” habeas petition filed by Mr. Keltner directly in the Kansas Supreme Court docketed on June 4, 2008 and denied on July 2, 2008. Petitioner has presented no factual or legal basis for this court to find that his attempt to bypass the established state post-conviction process by seeking this very limited “extraordinary” remedy was a “properly-filed motion” that entitles him to statutory tolling. In any event, even if the court granted additional statutory tolling for the 28 days this motion was pending, the federal application in this case was still filed 48 days late.

B. Claims of Attorney Misinformation

1. Dismissal of First 60-1507

The court found that the statute of limitations in this case ran during two segments: initially for 84 days in 2008 and years later for 281 days. Petitioner makes one argument that appears to seek equitable tolling during the initial 84-day segment. He claims that the dismissal of his first 1507 motion, which triggered the running of this segment, was on Billam’s advice. However, he does not even argue that Billam’s advice was erroneous and acknowledges that he was told to first seek relief in the trial court. Petitioner does not prove his entitlement to equitable tolling by baldly suggesting that some or all of the 84 days following his voluntary dismissal of his first 60-1507 motion should be tolled because he was following an attorney’s advice. Moreover, he does not explain how this dismissal prevented him from being able to prepare and timely file his petition during the remaining months of the one-year time limit.

2. Failure to Inform of KSC Decision

Petitioner claims that he is entitled to equitable tolling because attorney Billam failed to immediately inform him of the KSC’s decision to deny review on September 21, 2011. In support of this claim, he alleges that Billam was “2 months late from telling me, ” and exhibits letters from Billam, which petitioner characterizes as Billam “admitting he did so.” In Mr. Billam’s letter to petitioner dated March 30, 2012 (Doc. 4, Exh. 1 at 2), Billam noted the Supreme Court had denied Keltner’s petition for review in Case 08CV1687 and stated that he had previously informed Mr. Keltner by letter and thereafter “in January” had informed Keltner’s mom. In the letter from Billam to petitioner dated November 6, 2012 (Doc. 4 Exh. 1 at 1), Billam stated that he “first attempted” to advise Keltner of the Supreme Court’s denial “about four weeks after it occurred, ” learned Keltner “did not receive that letter from (his) mother a few months later” when she inquired as to the case status, and “resent” the letter but Keltner did not receive that one either. Billam concluded that “the third time was the charm.” Id.

Mr. Billam’s failure to promptly notify his client that the KSC had denied review is disturbing. Nonetheless, the court is not presented with facts establishing that this incident amounts to a “rare and exceptional circumstance.” Yang, 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)).[12] Billam at best claimed his first attempt was 4 weeks after the decision, while petitioner alleges that Billam delayed for 2 months. Billam’s other statements in his letters provide no clear picture of when or how he notified his client, but then petitioner also fails to clearly allege or show the date on which he actually received notification of the KSC’s decision. Billam’s delay of up to two months might reasonably be viewed as negligent. Unfortunately for Mr. Keltner, his state habeas counsel’s negligence alone is not a basis for equitable tolling. Petitioner alleges no facts to show that this delay should be viewed as “egregious misconduct.”[13] This case is distinguishable from Fleming, in that Mr. Keltner alleges nothing more than negligent conduct on Billam’s part and does not suggest that Billam deceived him into believing his legal remedies were actively being pursued when they were not. This case is also distinguishable from Fleming in that petitioner alleges no facts showing that he made any effort to determine the status of his state collateral appeal. Cooley v. Medina, 412 Fed.Appx. 51, 53 (10th Cir. 2011). Furthermore, petitioner alleges no facts indicating that once he received the delayed notice he acted promptly to ensure that his federal application would be timely filed. Id.

3. Incorrect Advice as to Start Date

Petitioner claims that attorney Billam also incorrectly advised him as to the start day of the federal statute of limitations. In support of this claim, he alleges that Billam gave him “the wrong date of the court’s final denial time” and “advised” him that his “case becomes final that I have one year from his telling me.” In Billam’s second letter (Doc. 4 Exh. 1 at 1) he stated that he had advised Keltner “in the past” that he had “one year from the time that (his) case becomes final, in your case the Kansas Supreme Court denies your request to hear the case, to file any further Federal motions.” Billam further stated that he had advised Keltner that his case “becomes final when this denial occurs or the time to file your request with the Kansas Supreme Court expires.” Petitioner’s allegations as to his understanding of the federal limitations start date in his case are not at all clear. Unfortunately, attorney Billam’s written statements are also unclear and, to the extent they can even be understood, appear to be erroneous.

Again, attorney Billam’s lack of clarity and inaccurate advice are disturbing. However, the court cannot presume that counsel’s miscalculation of the start date of the AEDPA limitations period was anything other than negligent. See Flynn v. Kansas, 299 Fed.Appx. 809, 813 (10th Cir. 2008). As previously noted, a petitioner’s reliance on attorney “miscalculation” regarding the statute of limitations period in § 2244(d)(1) is insufficient to warrant equitable tolling, including the mistaken belief that the one-year limitation period was reset after a state collateral appeal. See e.g., Jackson v. Kaiser, 229 F.3d 1163 *3 n.3 (10th Cir. 2000)(equitable tolling not warranted even when attorneys clearly err by misleading their clients about AEDPA’s statute of limitations); Reynolds v. Hines, 55 Fed.Appx. 512 (10th Cir. 2003)(habeas petitioner’s attorney’s incorrect advice regarding when the limitations period began to run was not the type of extraordinary circumstance entitling the petitioner to equitable tolling); Rouse, 339 F.3d at 248–49.[14] From petitioner’s allegations and exhibits, it appears to the court that the main reason Mr. Keltner delayed filing his 2254 petition until months after the federal time limit expired was his and his state collateral appeal counsel’s misunderstanding of the federal law as to the start date of the statute of limitations in his case. Clearly, this particular attorney mistake amounts to a “garden variety claim” of attorney negligence and is not at all extraordinary. Furthermore, petitioner’s own ignorance of this law is not grounds for equitable tolling. Marsh, 223 F.3d at 1220; Miller, 141 F.3d at 978; Gibson, 232 F.3d at 808 (“ignorance of the law generally and of the AEDPA time limit in particular will not excuse untimely filing, even for an incarcerated pro se prisoner.”). The court concludes that this mistake by counsel does not amount to a “rare and exceptional” circumstance requiring that the late filing of this § 2254 petition be equitably excused. Freeman, 467 Fed.Appx. at 777.

C. Conditions of Confinement

Petitioner also claims that conditions of his confinement prevented him from timely filing his federal petition. In support, he alleges the following. On March 19, 2012, he was in the “hole” and on the yard at Lansing Correctional Facility (LCF) when he was bled upon by another inmate who was injured while attempting to climb the fence. Petitioner was refused an immediate shower, clean clothes, and testing for “Hiv and Hep C.” The next morning, he set his cell on fire. When he refused to cuff up, a team conducted a “force cell move” during which petitioner was “shot with a chemical agent.”[15] Keltner was taken to the clinic and placed on “M.R.A. status.” When he “came back from the clinic” later that day, all his property had been taken including ten stamps purchased days before, [16] and he was not allowed to “even get mail.” He didn’t receive his property with his legal work for over 2½ months. As a result he “lost month’s of not having no way to mail legal work write lawyers.”

Obstructive action by prison officials that involves the “complete confiscation” of a petitioner's legal materials has been found to constitute an extraordinary circumstance warranting equitable tolling. See United States v. Gabaldon, 522 F.3d 1121, 1126 (10th Cir. 2008). At the same time, “an inmate bears a strong burden to show specific facts to support his claim of extraordinary circumstances and due diligence.” Yang, 525 F.3d at 928. Section 2244(d)(1)(B) makes clear that an 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). The court finds that petitioner has not alleged specific facts showing that the confiscation of his law work on March 19, 2012 prevented his timely filing of a 2254 petition by the deadline of June 29, 2012. Mr. Keltner does not identify any particular document among his “legal work” and explain how his lack of access to that document prevented him from filing this federal petition in a timely manner. See Parker v. Jones, 260 Fed.Appx. 81, 85 (10th Cir.), cert. denied, 553 U.S. 1082 (2008)(inmate’s vague allegations that he was in lockdown and had no access to legal materials will not justify equitably tolling the limitations period); Everson v. Kansas Dept. of Corrections, 232 Fed.Appx. 815, 817 (10th Cir. 2007)(Petitioner’s failure to allege specific facts as to how lack of access to legal resources impeded his ability to timely file a claim rendered it insufficient to show entitlement to equitable tolling); Abel v. Kansas, 187 Fed.Appx. 867 (10th Cir. 2006); Kerchee v. Jones, 2011 WL 305847 (W.D.Okla.), appeal dism’d, 428 Fed.Appx. 851 (10th Cir. 2011)(petitioner’s claim that confiscation of his legal papers and mail at the prison interfered with his ability to file timely motion was an impediment that required petitioner to show the specific steps he has taken to pursue his claims.). Since Mr. Keltner describes neither the confiscated legal property nor the duration and impact of his lack of access, his allegations are insufficient to demonstrate that this confiscation prevented him from filing a timely 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.).

Mr. Keltner’s allegation that he was denied mail is completely conclusory and likewise fails to prove his entitlement to equitable tolling. He provides no date suggesting how long he was “denied mail” or without access to postage. Nor does he allege that he had no alternative means of consulting with his attorney or transmitting indigent legal mail. He also fails to describe any particular legal mail that he was prevented from sending or receiving. The court additionally notes that Mr. Keltner’s lockdown[17] after he admittedly set his cell on fire was not a circumstance beyond his control. In sum, petitioner has described no extraordinary condition beyond his control that actually prevented him from filing his federal habeas corpus application prior to the deadline of June 29, 2012.

D. Other Claims

Mr. Keltner alleges that he “fought” his case the best he could and would never let the time run if he knew the situation. However, these bald allegations are not sufficient to establish that he was diligently pursuing proper remedies throughout the 365 days that the federal statute of limitations was running in this case. In order to show the second factor required for equitable tolling, a federal habeas petition 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). Petitioner blames his late filing on the acts of others during some of the time that the limitations period was running, but does not describe a single step taken by him during this one-year period that reflects his diligent pursuit of his federal remedy.

In petitioner’s “Memo in Support of 2254 motion” docketed as a Supplement (Doc. 5), he asserts that he should be allowed to proceed with this federal habeas corpus application in order to have his claims reviewed under State v. Schow. In support, he alleges that the KCA affirmed the denial of his motion to withdraw plea based on Ford, which was later “abrogated” by Schow. He then argues that he should be allowed to have Schow applied to his case in this federal habeas corpus proceeding because the state courts erroneously failed to apply Schow and he is prevented from filing successive post-conviction motions in state court. This argument might be a proper response to a finding of procedural default, but no such finding has been entered by this court. Nor do any of petitioner’s arguments on the merits of his claims demonstrate his “actual innocence” so as to satisfy this recognized exception to the statute of limitations.[18]

In conclusion, the court finds that this petition was untimely filed and petitioner has “failed to demonstrate that he meets the requirements of statutory tolling or that his case presents the kind of rare and exceptional circumstance that would entitle him to equitable tolling.” See Gunderson v. Abbott, 172 Fed.Appx. 806, 810 (10th Cir. 2006).

CERTIFICATE OF APPEALABILITY

Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, instructs that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Pursuant to 28 U.S.C. § 2253, the court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right, ” and the court “indicates which specific issue or issues satisfy [that] showing.” A petitioner can satisfy that standard by demonstrating that the issues raised are debatable among jurists, that a court could resolve the issues differently, or that the questions deserve further proceedings. Slack v. McDaniel, 529 U.S. 473 (2000)(citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In addition, when the court’s ruling is based on procedural grounds, a petitioner must demonstrate that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484. The court concludes that a certificate of appealability should not issue in this case. Nothing suggests that the court’s rulings resulting in the dismissal of this action as time barred are debatable or incorrect.

IT IS THEREFORE BY THE COURT ORDERED that this petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 is denied as time barred.

IT IS FURTHER ORDERED that a certificate of appealability is denied.

IT IS SO ORDERED.


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