United States District Court, D. Kansas
GERALD E. GONZALES, Petitioner,
WARDEN SAM CLINE, Respondent.
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se and paid the filing
Court is required to examine habeas corpus petitions promptly
and to dismiss a petition “[i]f it plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court.” Rule 4,
Rules Governing Section 2254 Cases. The timeliness of a
petition may be raised sua sponte by the Court. See Day
v. McDonough, 547 U.S. 198, 209 (2006).
for appointment of counsel
moves for the appointment of counsel. An applicant for habeas
corpus relief has no constitutional right to the appointment
of counsel. See Swazo v. Wyo. Dept. of Corr., 23
F.3d 332, 333 (10th Cir. 1994)(“[T]here is
no constitutional right to counsel beyond the appeal of a
criminal conviction, and … generally appointment of
counsel in a § 2254 proceeding is left to the
court's discretion.”). Rather, the court may
appoint counsel when “the interests of justice so
require” for a petitioner who is financially eligible.
See 18 U.S.C. § 3006A(1)(2)(b).
court has studied the petition and concludes that the
appointment of counsel is not warranted. The petitioner is
able to express his claims, there is no suggestion that this
matter is unusually complicated, and it does not appear that
an evidentiary hearing will be needed in this matter.
petition lists three grounds for relief: (1) that petitioner
is held on a “false claim”, which he supports by
reference to a change in his Presentence Investigation; (2)
that the State used a false police report to detain him; and
(3) actual innocence.
of the petition
28 U.S.C. § 2244(d)(1), “[a] 1-year period of
limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgement of a
State court, ” running from the latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) 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;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made