MARCUS W. KELLEY, Jr., Petitioner,
REX PYROR, et al., Respondents.
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 Mr. Kelley failed to show exhaustion of state court remedies on all his claims. In addition, the court found that the petition appears to be time barred, set forth tentative facts and the pertinent statutory provisions,  and explained its application of those laws to the facts. Mr. Kelley was ordered to show cause why this petition should not be dismissed for these reasons. He responded by filing a letter with attachments that were docketed as his Response (Doc. 3). Having considered all the materials in the file the court finds that petitioner has not shown exhaustion on all his claims and has not shown good cause why this petition should not be dismissed as untimely.
PROCEDURAL HISTORY & BACKGROUND
The court previously set forth a tentative procedural history of Mr. Kelley’s case. It now incorporates corrections and details garnered as a result of Mr. Kelley’s Response, and finds the following background facts. Mr. Kelley was convicted upon his plea of no contest in the District Court of Atchison County, Kansas, of Attempted First Degree Murder. On October 16, 2006, he was sentenced to 618 months in prison. He did not file a direct appeal.
On November 14, 2007, Mr. Kelley filed a pro se post-conviction motion pursuant to K.S.A. 60-1507 in which he alleged that he was mentally incompetent at the time of the offense, when he entered his plea, and at sentencing. He also claimed that the State failed to prove all elements of the offense and improperly relied upon a 1999 juvenile adjudication in calculating his criminal history score. In addition, he claimed that his attorney was ineffective for failing to investigate, request a second competency evaluation, and present mitigating evidence at sentencing. See Kelley, 277 P.3d 447 at *1. Counsel Martin Johanning was appointed, and an evidentiary hearing was conducted at which petitioner testified. The state district judge denied this motion on December 18, 2009. Kelley appealed the denial to the Kansas Court of Appeals (KCA), and Deputy Appellate Defender Janine Cox was appointed to represent him. The KCA affirmed on May 25, 2012. Id. The court takes judicial notice of the Kansas Appellate Courts docket available on-line for Case No. 07cv127, which shows that after entry of this KCA judgment no petition for review was filed in this case. Thus, the court finds that petitioner did not appeal the denial of his first 60-1507 motion to the Kansas Supreme Court (KSC).
On August 8, 2012, Kelley filed a Motion to Correct Illegal Sentence pursuant to K.S.A. 22-3504(1). In this pro se motion, he claimed that the judge giving him “the highest sentence in the category B grid box” based upon his criminal history was unconstitutional and violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The motion was denied by the state trial court on August 21, 2012. This court found in its prior Memorandum and Order that nothing in the federal petition indicated Kelley had appealed this denial to either the KCA or the KSC. However, petitioner now presents several documents within his Response that cause the court to correct this finding. The court takes judicial notice of Appellate Case No. 108734 on the Kansas Appellate Courts docket. This record shows that Kelley’s motion to docket appeal out of time was granted on October 18, 2012. Kelley thereafter filed three motions “FOR EXT. OF TIME TO FILE BRIEF” followed by a “SUMMARY DISPOSITION OF SENTENCING APPEAL, ” which was granted on April 25, 2013. Kelley also filed a Petition for Review that was denied on August 30, 2013. Mr. Kelley executed the instant federal application for habeas corpus relief on September 19, 2013.
In petitioner’s Response, he states that documents he has attached “explain (his) situations.” With respect to timeliness, he does not expressly assert that he is entitled to additional statutory tolling. And the court finds that he is not because his Motion to Correct Illegal Sentence was not filed before expiration of the federal statute of limitations. Petitioner appears to claim that he is entitled to equitable tolling. In support, he alleges “‘Time Barred’ K.S.A. 22-3504 to Appellant (sic) Court b/c . . . Lansing Corr. Facility (LCF) had been on lockdown during my filing times.”
Mr. Kelley complied with the court’s order to address the exhaustion issue by referring to his attached motion to correct illegal sentence and subsequent notice of appeal. The court finds, as a result of Mr. Kelley’s Response and attachments, that he appears to have fully exhausted his Apprendi claims in the state courts by way of his motion to correct illegal sentence and appeal proceedings, which concluded with the KSC denying review on August 30, 2013. However, since he did not appeal the KCA’s May 2012 affirmance of the denial of his 60-1507 motion, he has not shown full exhaustion on any of his other claims. Generally, a “mixed” petition, that is one containing unexhausted as well as exhausted claims, must be dismissed. In any event, the question of exhaustion of state court remedies is no longer of any relevance because the time in which Mr. Kelley could have pursued his remedy in federal court has run out.
a. Application of § 2244(d)
Petitioner was sentenced on October 16, 2006. He had thirty (30) days from that date in which to file a direct criminal appeal. He did not file a direct appeal, and the time limit for appeal expired on November 15, 2006. Applying the statutory provisions, petitioner’s conviction and sentence became “final” for limitations purposes the following day on November ...