Jones v. Heimgartner, CASE NO. 12-3055-SAC
| Decision Date | 20 April 2012 |
| Docket Number | CASE NO. 12-3055-SAC |
| Parties | CHARLES L. JONES, Petitioner, v. JAMES HEIMGARTNER, et al., Respondents. |
| Court | U.S. District Court — District of Kansas |
This petition for writ of habeas corpus, 28 U.S.C. § 2254, was filed pro se by an inmate of the El Dorado Correctional Facility, El Dorado, Kansas. Petitioner has also filed a Motion for Leave to Proceed in forma pauperis, which the supporting financial records indicate should be granted.
When Mr. Jones was 16 years old he was State v. Jones, 273 Kan. 756, 47 P.3d 783, 786 (Kan. 2002), cert. denied, 537 U.S. 980 (2002). Jones was convicted by a jury of first-degree murder and sentenced on March 17, 2000, to life in prison with no chance of parole for 25 years. Jones v. State, 120 P.3d 381, 2005 WL 2416069 (Kan.App. 2005). He directly appealed, and the Kansas Supreme Court affirmed his conviction and sentence on May 31, 2002. The United States Supreme Court denied review on October 21, 2002.
Mr. Jones filed a 60-1507 motion in the state district court on July 9, 2004. The motion was dismissed as filed a day or solate, even though Jones had argued that he had requested approval from prison authorities to mail his motion on June 29, 2004. This dismissal was reversed on appeal. Jones, 120 P.3d 381 at *3. The district court then appointed counsel, held an evidentiary hearing on the merits of the 60-1507 motion, and denied the motion. Mr. Jones appealed to the Kansas Court of Appeals (KCA), which affirmed on March 27, 2009. The Kansas Supreme Court denied a Petition for Review on January 7, 2010.
"Approximately 3 months after" the KCA denied relief in the 60-1507 proceedings, Mr. Jones filed a motion to correct illegal sentence. The trial court denied the motion in a letter decision. See State v. Jones 257 P.3d 268, 270 (Kan. 2011). Jones appealed, and the Kansas Supreme Court affirmed the denial on August 12, 2011. The U.S. Supreme Court denied certiorari on January 17, 2012. Petitioner states that he filed a motion for rehearing with the U.S. Supreme Court on January 31, 2012.
Mr. Jones executed the instant federal petition on February 24, 2012. He presents 17 grounds for relief, and alleges that state remedies have been exhausted on each of his claims.
The procedural history of this case presents the threshold question of the timeliness of the federal petition filed by Mr. Jones. The statute of limitations for filing a federal habeas corpus petition is set forth in 28 U.S.C. § 2244(d)(1), as follows:
A 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court.
The "limitation period shall run from" the "latest of" four dates, including "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The statute provides, however, for tolling of the statute of limitations during the pendency of any "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim . . . ." 28 U.S.C. § 2244(d)(2).
It appears from the foregoing procedural history that without either statutory or equitable tolling this federal petition is time-barred. Applying the statutory provisions to the facts of this case, petitioner's conviction "became final" for limitations purposes on October 21, 2002, the date on which all possible steps of his direct appeal were complete. The statute of limitations for filing his federal habeas corpus petition began to run the next day. It continued to run without interruption until it expired on or about October 22, 2003.
Mr. Jones makes the claim that he filed a § 2254 petition in this court in 2003 together with a motion to stay. However, this claim is not substantiated. In support, he exhibits a two-page handwritten § 2254 petition, that is not on forms, which he prepared and dated as executed on March 28, 2003. In a "Certificate of Service" on this document he stated that it "was handed to the HCF prison correctional officer prepaid first class postage on March 28, 2003, to be deposit (sic) in the prison mailing system . . . for mailing to the Kansas federal district court." Petitioner also exhibits a "Motion to Stay and Abeyance" in which he stated that he needed "to exhaust 6 claims first in state court on post conviction60-1507 petition," with the same "Certificate of Service" language. In addition, he provides an affidavit from a correctional official attesting only that the process in 2003 was for inmates to give their legal petitions to a prison official for mailing. Petitioner states in his pleading that he has not previously filed any petition in federal court regarding the conviction being challenged. At the same time, he makes the contrary statement that the § 2254 petition he prepared in 2003 is now pending in this court, and that the "foregoing 2254 petition is an Amendment and should relate back to the 2254 petition that was filed on March 28th, 2003."
Petitioner does not provide a federal court case number or a copy of a file-stamped pleading from a pending 2003 federal habeas case. The court has searched its case files and finds no habeas corpus petition filed by anyone named Charles Jones in 2003. Mr. Jones does not present evidence that he paid a filing fee, that he complied with the court rule to submit the petition upon forms, or that he received any type of response or order from this court in a 2003 case. Nor does he show that he inquired about this alleged 2003 petition at any time during the one-year limitation period or any of the subsequent 8 years. Petitioner's allegations and exhibits are simply not sufficient to show that he actually caused a § 2254 petition and motion to stay to be filed in this court in 2003.
Even if such a premature petition prepared by Mr. Jones had reached this federal court and been filed in 2003, its pendency would not have tolled the statute of limitations. Rhines v. Weber, 544 U.S. 269, 574-75 (2005)("'the filing of a petition for habeas corpus in federal court does not toll the statute of limitations.").Only a properly filed state post-conviction action has the tolling effect provided for in § 2244(d)(2). Federal district courts must dismiss petitions that contain unexhausted claims. See Pliler v. Ford, 542 U.S. 225 (2004). A federal petition in which failure to exhaust was admitted would in the normal course have been dismissed without prejudice. And, while the granting of a motion to stay could have saved petitioner from the federal time-bar, a motion to stay was never filed by Mr. Jones or granted in federal court. The exhibited motion for stay would have been denied, since it does not show the requisite grounds for a stay and, at the time of the alleged filing, several months remained in the federal statute of limitations in this case.
Petitioner also asserts that the untimeliness of his 2012 petition should be excused based upon exceptions for actual innocence and fundamental miscarriage of justice. However, he does not allege sufficient facts to show his entitlement to equitable tolling on either of these grounds. His assertions of actual innocence are based upon legal arguments that he should not have been tried as an adult, rather than new evidence of his factual innocence of the crime. His arguments regarding the merits of his habeas claims are not sufficient to establish his entitlement to the miscarriage of justice exception. Mr. Jones is given the opportunity to show that he is entitled to equitable tolling1 andthat his petition should not be dismissed as time-barred. If he fails to allege additional facts to make such a showing within the time allotted this action will be dismissed as time-barred.
The court has considered petitioner's Motion for Appointment of Counsel (Doc. 4) and finds that it should be denied. There is no right to appointment of counsel in federal habeas corpus proceedings unless an evidentiary hearing is required. Petitioner's motion for an evidentiary hearing (Doc. 3) on the grounds stated in the motion is also denied. Both motions are denied without prejudice. The court will reconsider appointment of counsel in the event that it eventually reviews the state record and finds an evidentiary hearing is required. At this juncture, it appears more likely that thisaction will be dismissed as time-barred.
Petitioner's "Motion Request for Amendment of 2254 Petition" (Doc. 5) is denied.2 In this motion, petitioner asks the court to allow him to amend "his principal 2254 federal petition that was file (sic) on March 28th 2003 . . . to add the additional grounds that has (sic) been exhausted in state court." As fully explained earlier, this court has no record of having received a federal habeas corpus petition from Mr. Jones in 2003, and he has not substantiated his claim that such a petition was filed and is pending. Petitioner cites no authority for this court to rule that his 2012 petition is an amendment to a petition that was never received and filed in federal court.3
This motion is not presented as one to compel discovery under the Federal Rules of Civil Procedure and does not include information about attempts already made by petitioner to obtain this information without court order. Of course, Mr. Jones is free to seek access to his own mental health and other records. However, he does not convince the court in his motion that he is entitled to an order from this court requiring the respondent and various other entities, some of which...
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