United States District Court, D. Kansas
GERALD E. GONZALES, Petitioner,
WARDEN SAM CLINE, Defendants.
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE.
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.
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
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).
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
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
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.
commenced this action on September 22, 2017, approximately
three months after the limitation period expired.
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.
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.
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.