United States District Court, D. Kansas
PHILLIP R. PARKS, Petitioner,
WARDEN SAM CLINE, Respondent.
ORDER OF DISMISSAL
CROW U.S. SENIOR DISTRICT JUDGE
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. On April 17, 2019, the Court filed an order
directing petitioner to show cause why this action should not
be dismissed as time-barred. Petitioner filed a timely
1997, petitioner entered a no contest plea to a 1978 murder.
State v. Parks, 962 P.2d 486 (1998). In June 2003,
he filed a state post-conviction action. That matter was
dismissed in July 2003, and petitioner did not appeal.
January 2015, petitioner filed a motion to set aside void
judgment. The state district court, after appointing counsel
and conducting a hearing, construed the matter as a motion to
withdraw guilty plea and denied it, finding petitioner had
not timely filed the motion and had not shown grounds for
excusable neglect. The Kansas Supreme Court affirmed the
dismissal. State v. Parks, 417 P.3d 1070 (Kan.
matter is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA). Under the AEDPA, a petition filed under
§ 2254 ordinarily must be filed within one year from the
time the judgment becomes final by the conclusion of direct
review or the expiration of the time for seeking that review.
28 U.S.C. § 2244(d)(2). Because petitioner took no
action to challenge his 1997 conviction until 2003, the
limitation period ran, and he may proceed only if he
establishes adequate grounds for equitable tolling.
seeks equitable tolling on the following grounds: (1) he is
actually innocent, (2) the judgment is void, (3) the
prosecutor knowingly used perjured testimony, and (4) the
prosecutor knowingly misled him into taking a defective plea.
tolling is appropriate when a petitioner shows “(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)(internal quotation marks omitted).
petitioner seeking equitable tolling based on a claim of
actual innocence must show that “in light of all the
evidence, it is more likely than not that no reasonable juror
would have convicted him, ” Bousley v. United
States, 523 U.S. 614 (1998)(quotations omitted), and
must “support his allegations of constitutional error
with new reliable evidence … that was not presented at
trial.” Schlup v. Delo, 513 U.S. 298, 327
has not made this showing. He does not support his claim of
actual innocence with new evidence of any kind, nor does he
offer any reason that he could not assert his claims during
the one-year limitation period. The Court finds no ground to
waive the limitation period and concludes this matter must be
Court next must consider whether to grant a certificate of
appealability. Under Rule 11 of the Rules Governing Section
2254 Cases in the United States District Courts, “the
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” A certificate of appealability should issue
“only if the applicant has made a substantial showing
of the denial of a constitutional right, ” and the
Court identifies the specific issue that meets that showing.
28 U.S.C. § 2253.
as here, the Court's decision is based on a procedural
ground, the petitioner must show that “jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the