United States District Court, D. Kansas
CALVIN C. STRONG, Petitioner,
JAMES HEIMGARTNER, Respondent.
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
matter is before the Court on several motions: (1)
Respondent's Motion to Dismiss (ECF No. 37); (2)
Petitioner's Motion for Summary Judgment (ECF No. 38);
(3) Petitioner's Motion for Additional Records (ECF No.
39); and (4) Petitioner's Motion for Recusal (ECF No.
40). For the reasons described herein, all motions are
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner commenced the present action on May
10, 2016, seeking relief from his conviction on two grounds:
(1) that the state district court failed to process and rule
on his post-conviction motions filed in June of 1983, and (2)
that the trial court lacked subject matter jurisdiction to
enter judgment against him. The Court reviewed the Petition
and ordered Respondent to file a response addressing the
timeliness of this matter. See ECF No. 5. Respondent
filed a response, arguing the Petition was filed out of time.
See ECF No. 9. The Court agreed and dismissed the
Petition as time-barred. See ECF No. 11. Petitioner
then appealed the dismissal to the Tenth Circuit Court of
Appeals. The Tenth Circuit found that because Petitioner had
a post-conviction motion pending in state court for the last
35 years, the statute of limitations for filing a federal
habeas action was tolled. Therefore, the Tenth Circuit
reversed and remanded the case for further proceedings.
See Strong v. Hrabe, 750 Fed.Appx. 731
(10th Cir. 2018). The Court then ordered
Respondent to show cause why the writ should not be granted.
See ECF No. 32. In lieu of filing a response,
Respondent filed the pending Motion to Dismiss.
Motion to Dismiss (ECF No. 37)
Motion to Dismiss, Respondent argues the Petition should be
dismissed because Petitioner has not exhausted his state
court remedies. Respondent asserts that because the
post-conviction motions that tolled the running of the
limitation period remain pending, the state courts have not
fully considered Petitioner's claims as required for
exhaustion. Respondent argues Mr. Strong should be required
to file a motion for a writ of mandamus in the Kansas Supreme
Court to force the district court to rule on his long-pending
motions, then, if the ruling is not favorable, appeal the
ruling through the state appellate courts before he can
pursue a writ of habeas corpus in this court.
January 30, 2019, Petitioner filed a Motion for Summary
Judgment. See ECF No. 38. The pleading responds to
Respondent's arguments in the Motion to Dismiss, and the
Court has considered it in ruling on the motion.
initial matter, Petitioner argues that because Respondent did
not raise the exhaustion issue in his response addressing the
timeliness of the Petition, it has been waived. 28 U.S.C.A.
§ 2254(b)(3) provides that “[a] State shall not be
deemed to have waived the exhaustion requirement or be
estopped from reliance upon the requirement unless the State,
through counsel, expressly waives the requirement.”
Respondent at no time expressly waived the exhaustion
case cited by Petitioner stands for the proposition that if
the State does not raise failure to exhaust state remedies at
the federal district court level, the issue may be deemed
waived if the State attempts to raise a nonexhaustion defense
for the first time on appeal. See Granberry v.
Greer, 481 U.S. 129, 134 (1987). Because that is not the
case here, the Court finds Respondent has not waived the
to the exhaustion requirement itself, 28 U.S.C. §
2254(b)(1) provides, “An application for a writ of
habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it
appears that--(A) the applicant has
exhausted the remedies available in the courts of the State;
or (B)(i) there is an absence of available
State corrective process; or (ii)
circumstances exist that render such process ineffective to
protect the rights of the applicant.” The statute
further provides, “An applicant shall not be deemed to
have exhausted the remedies available in the courts of the
State, within the meaning of this section, if he has the
right under the law of the State to raise, by any available
procedure, the question presented.” 28 U.S.C. §
exhaustion requirement is not a jurisdictional bar.
Demarest v. Price, 130 F.3d 922, 933
(10th Cir. 1997); Castille v. Peoples,
489 U.S. 346, 349 (1989). While exhaustion is not to be
“overlooked lightly” (Hernandez v.
Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995)), an
exception to the exhaustion requirement may be made where
“there is no opportunity to obtain redress in state
court or if the corrective process is so clearly deficient as
to render futile any effort to obtain relief.”
Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per
curiam); 28 U.S.C. § 2254(b)(1)(B). State remedies may
be deemed to be ineffective where there has been
“[i]nordinate, unjustifiable delay in a state-court
collateral proceeding.” Jackson v. Duckworth,
112 F.3d 878, 881 (7th Cir. 1997). See also Harris v.
Champion, 15 F.3d 1538, 1556 (10th Cir. 1994) (delay of
more than two years on direct appeal of conviction gives rise
to a rebuttable presumption that exhaustion should be
excused); Lee v. Stickman, 357 F.3d 338, 342
(3rd Cir. 2004) (exhaustion of state court
remedies requirement excused where petition under
Pennsylvania's Post Conviction Relief Act had been before
the Pennsylvania state courts for almost eight years with no
resolution); Bookwalter v. Steele, No. 4:17-CV-2333
SPM, 2017 WL 6059227, at *2 (E.D. Mo. Dec. 7, 2017) (nearly
seven-year delay exercised by the post-conviction court
excused the exhaustion required in 28 U.S.C. §
2254(b)(1)(A)); Pool v. Wyrick, 703 F.2d 1064,
1066-67 (8th Cir. 1983) (per curiam) (where petitioners had
not obtained any state-court ruling on post-conviction
motions after delays of more than two years, court of appeals
remanded case to the district court with directions to
consider the habeas petition on the merits if the state court
still had not rendered a decision within a stated period of
time); Workman v. Tate, 957 F.2d 1339, 1344
(6th Cir. 1992) (exhaustion requirement excused
where state petition for post-conviction relief had been
pending for three years); Plymail v. Mirandy, 671
Fed.Appx. 869, 870-71 (4th Cir. 2016) (exhaustion requirement
excused where state supreme court took over 20 years to
decide direct appeal, state habeas petition had been pending
for more than three years, inmate had successfully petitioned
at one juncture for writ of mandamus ordering resentencing to
allow him to perfect his appeal, and inmate allegedly
suffered from life-threatening medical condition that
rendered him unable to ensure timely prosecution of his
extent Petitioner has not given the state courts the
opportunity to consider the issues he has raised herein,
Petitioner is excused from the exhaustion of remedies
requirement in the interests of justice. While the exhaustion
requirement is not to be “overlooked lightly, ”
Hernandez, 69 F.3d at 1092, it seems unfair to
require Petitioner to file a mandamus action when the state
court has had 35 years to rule on Petitioner's
post-conviction motions for collateral relief and has failed
to do so. The facts of this case seem to present the very
definition of “inordinate, unjustifiable delay.”
Jackson, 112 F.3d at 881. Respondent's Motion to
Dismiss is denied.
Petitioner's Motion for Summary Judgment (ECF No.
addition to responding to the Motion to Dismiss, Petitioner
argues in his Motion for Summary Judgment that Respondent has
failed to assert any facts disputing his substantive
allegations and therefore he ...