December 3, 2014
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 16, 2006. The limitations period began running that day and ran without interruption for 363 days.
On November 14, 2007, petitioner filed his first state post-conviction motion pursuant to K.S.A. 60-1507. The statute of limitations was tolled during the entire pendency of these state collateral proceedings, which concluded when the KCA entered its decision on May 25, 2012. The court finds that petitioner is entitled to statutory tolling from November 14, 2007 through June 24, 2012 (date of decision plus 30 days during which petitioner could have but did not file a petition for review in the KSC).
On June 25, 2012, the 60-1507 proceedings and time to appeal to the KSC were no longer pending, and the limitations period recommenced with only two days remaining. The time limit expired on June 27, 2012.
Petitioner filed a Motion to Correct Illegal Sentence on August 8, 2012, and appealed its denial to the KCA and the KSC. However, these proceedings had no tolling effect because this motion was filed more than a month after the limitations period had already expired. See Fisher v. Gibson, 262 F.3d 1135, 1142– 43 (10th Cir. 2001). The instant federal petition was likewise filed after the time limit expired.
b. Equitable Tolling
As petitioner was informed, a litigant claiming entitlement to equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. Petitioner’s allegations that LCF was on lockdown in September and October of 2012 and he was denied access to the prison law library in the evenings during that time are too conclusory to establish his entitlement to equitable tolling. To support his lockdown allegation he exhibits a grievance (Doc. 3 at 6-7), which he did not date. On the other hand, the administrative response on the bottom half of the grievance is dated July 3, 2013, which is 8 months after the alleged lockdown. Petitioner admits that he filed this grievance “at a later time” and “after the fact, expo (sic) facto” to “argue” that he “would be time barred last year Sept.-October 2012.” He then baldly claims, “because of the grievous threats from the Court of Appeals.”Mr. Kelley makes no effort to describe legal research he needed to do or legal materials he needed to access on particular dates and how he was denied access to the necessary materials on those dates. Most significantly, the statute of limitations expired in this case on June 28, 2012, which was months before the alleged September/October 2012 lockdown. Thus, the lockdown could not have impacted the running of the federal limitations period in this case.
Furthermore, an inmate is required to show that he diligently pursued his claims by alleging 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.”). Mr. Kelley has not described any effort on his part to pursue his federal habeas corpus remedy in a timely manner. He describes no act taken by him during the initial 363 days that the federal limitations period was running. He likewise fails to describe how he immediately and thus diligently pursued his claims during the two–day period that began the day after his second state post-conviction proceedings concluded. In sum, Mr. Kelley fails to show that either a lockdown or limited access to the prison law library at LCF, rather than his own lack of diligence throughout the one-year limitations period, caused him to file his federal petition late. As a result, the court finds that the petition is time-barred. Accordingly, this action is dismissed with prejudice and all relief is denied.
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 dismissed as time barred and that a certificate of appealability is denied.
IT IS SO ORDERED.