United States District Court, D. Kansas
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 the Court grants
leave to proceed in forma pauperis. By an order filed on
December 8, 2017, the Court directed petitioner to show cause
why this matter should not be dismissed due to his failure to
file this matter within the one-year limitation period.
Petitioner filed a timely response (Doc. #6).
states that for an unspecified number of years he was not
aware of the habeas corpus remedy. He also states that once
he discovered the remedy, he consulted with his counsel and
was told that he was not eligible for habeas corpus relief.
However, after he discussed the matter with unidentified
“jail house lawyers” he decided that the remedy
applies to him. Finally, petitioner states that he has been
in segregation and had no access to law books or materials
for some period of time. Accordingly, he argues that he is
entitled to proceed in habeas corpus, as he has been diligent
in pursuing his rights and has been prevented from seeking
relief by extraordinary circumstances.
tolling of the habeas corpus limitation period is available
in “rare and exceptional circumstances.”
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.
2000). In order to qualify for such tolling, a petitioner
must show “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649
(2010)(quotations omitted). A petitioner seeking equitable
tolling has a “strong burden to show specific
facts” in support of the necessary showing. Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008).
Court has considered petitioner's arguments but concludes
that he is not entitled to equitable tolling. First,
petitioner's argument of ignorance of the law and the
tolling period are insufficient to excuse his failure to
timely file. It is settled that a pro se petitioner's
ignorance of the law generally does not excuse the failure to
timely file. Marsh v. Soares, 223 F.3d 1217, 1220
(10th Cir. 2000)(quoting Fisher v. Johnson, 174 F.3d
710, 714 (5th Cir. 1999)). Next, while petitioner asserts
that he received incorrect advice from his counsel that he
was not eligible for habeas corpus relief, it appears that he
did not seek that advice until after he learned of the remedy
“a number of years” after his conviction, and
therefore, after the limitation period expired. Finally,
petitioner's argument that he had no access to legal
materials due to his housing classification is not an
adequate basis for equitable tolling. See McCarley v.
Ward, 143 Fed.Appx. 913 (10th Cir. 2005)(rejecting
petitioner's argument that equitable tolling was
appropriate due to his brain damage and inadequate law
library). See also Miller v. Marr, 141 F.3d 976, 978
(10th Cir. 1998)(“It is not enough to say that the
… facility lacked all relevant statutes and case law
or that the procedure to request specific materials was
inadequate.”) and Gibson, 232 F.3d at 808
(claim of insufficient access to relevant law is not
sufficient for equitable tolling).
these reasons, the Court concludes this matter must be
dismissed as time-barred.
Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, “[t]he district court
must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” The
district court may issue a certificate of appealability
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). When a petition is dismissed on procedural
grounds, the petitioner must show both “(1) that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and (2) that jurists of reason would
find it debatable whether the district court was correct in
its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
the Court concludes that reasonable jurists would not debate
its procedural finding that the petition is time-barred and
that petitioner has not demonstrated that he is entitled to
equitable tolling of the limitation period. The Court
therefore declines to issue a certificate of appealability.
THEREFORE, BY THE COURT ORDERED petitioner's motions to
proceed in forma pauperis (Docs. #2 and #5) are granted.
FURTHER ORDERED the petition for habeas corpus is dismissed
FURTHER ORDERED no certificate of appealability will issue.