Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gonzales v. Cline

United States District Court, D. Kansas

January 12, 2018

GERALD E. GONZALES, Petitioner,
v.
WARDEN SAM CLINE, Defendants.

          MEMORANDUM AND ORDER

          SAM A. CROW, U.S. SENIOR DISTRICT JUDGE.

         This matter is a petition for habeas corpus filed under 28 U.S.C. §2254. On December 1, 2017, the Court directed petitioner to show cause why this matter should not be dismissed due to his failure to file the petition within the one-year limitation period under 28 U.S.C. 2244(d)(1). Petitioner filed a response.

         Background

         Petitioner was convicted in the District Court of Sedgwick County, Kansas. Before sentencing, he filed a motion for a new trial on the ground of ineffective assistance of counsel. The district court held an evidentiary hearing and denied the motion; petitioner's case then proceeded on direct appeal to the Kansas Supreme Court. State v. Gonzales, 212 P.3d 215 (Kan. 2009). The Kansas Supreme Court noted that the district court had treated the motion for new trial as a motion under K.S.A. 60-1507. It, too, treated the claims of ineffective assistance of counsel as raised under K.S.A. 60-1507 and affirmed the denial of the request for a new trial, but it remanded the matter to the state district court for resentencing.

         Following resentencing, petitioner filed a sentencing appeal, which the Kansas Supreme Court affirmed in part, and dismissed in part. State v. Gonzales, 257 P.3d 345 (Table), 2011 WL 3558302 (Kan. Aug. 12, 2011). The decision became final ninety days later, on November 9, 2011, when the time for seeking review in the U.S Supreme Court expired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001).

         The one-year limitation period began to run on November 10, 2011, and ran until petitioner filed his state post-conviction action on August 3, 2012. See 28 U.S.C. § 2244(d)(2)(providing statutory tolling for the time during which a properly-filed application for State post-conviction or other collateral relief is pending). At this point, 267 days had run on the one-year limitation period, and 98 days remained.

         The limitation period was tolled until the Kansas Supreme Court denied review on July 21, 2015. Gonzales v. State, 327 P.3d 1052 (Table), 2014 WL 3289775 (Kan. App. Jul. 3, 2014), rev. denied, Jul. 21, 2015. The limitation period then began to run again but was tolled on August 4, 2015, by petitioner's motion to correct illegal sentence. This left 85 days remaining on the one-year limitation period.

         The district court denied relief, and the Kansas Court of Appeals affirmed that decision on February 24, 2017. State v. Gonzales, 390 P.3d 122 (Table), 2017 WL 751360 (Kan.App. Feb. 24, 2017). The limitation period began to run again after the expiration of the time for filing an appeal and expired on or about June 20, 2017.

         Petitioner commenced this action on September 22, 2017, approximately three months after the limitation period expired.

         Discussion

         In his response, petitioner argues: (1) the Kansas courts erred in treating his August 2007 motion for new trial as a motion filed under K.S.A. 60-1507; (2) he has attempted to exhaust all remedies in challenging his conviction; (3) his trial attorney failed to provide adequate assistance; (4) petitioner was required to attend trial in dirty, inappropriate clothing; (5) his sentencing attorney provided ineffective assistance of counsel; and (6) the trial judge was not impartial.

         The Court has considered these claims but finds no basis to conclude that petitioner filed his habeas corpus action within the one-year limitation period under 28 U.S.C. § 2244(d)(1). Petitioner's arguments largely allege trial error and are not relevant to the question of whether he timely filed his federal petition for habeas corpus.

         Likewise, while equitable tolling is available in narrow circumstances, a petitioner seeking such tolling 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)(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner's arguments do not meet this showing. Accordingly, the Court concludes this matter must be dismissed.

         Certificate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.