Vincent v. Kansas, State of

Filing 15

MEMORANDUM AND ORDER ENTERED: Respondent's motion 12 to dismiss is granted. Signed by Senior District Judge Sam A. Crow on 10/4/2011. (Mailed to pro se party Lloyd Vincent, Jr. by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LLOYD VINCENT, JR.,
Petitioner,
CIVIL ACTION
No. 11-3052-SAC

vs.
RAY ROBERTS,

Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed pursuant
to 28 U.S.C. § 2254.

It comes before the court on respondent’s

motion to dismiss this matter as untimely (Doc. 12).

Petitioner

has filed no response.
Discussion
This action is governed by the Antiterrorism and Effective
Death Penalty Act (AEDPA).

The AEDPA established a one-year

limitation period for a state prisoner to file a federal habeas
petition.

28 U.S.C. § 2244(d)(1).

The limitation period runs from the latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of

the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by
such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court,
if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D).

The limitation period is tolled during “[t]he time during
which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment
or claim is pending ....“ § 2244(d)(2).

In addition, the

limitation period may be subject to equitable tolling, but only
in “rare and exceptional circumstances.”

York v. Galetka, 314

F.3d 522, 527 (10th Cir.2003).
Procedural history and analysis
Petitioner was convicted in the District Court of Wyandotte
County, Kansas, on March 15, 2005, of aggravated robbery, in
violation of K.S.A. 21-3715.

He was sentenced to a term of 88

months on August 8, 2005.
The Kansas Court of Appeals (KCOA) affirmed the conviction

2

on December 15, 2006, in an unpublished order.1

The Kansas

Supreme Court denied review on March 27, 2007.

Ninety days

later, on June 25, 2007, the time to seek review in the United
States Supreme Court expired, and the one-year limitation period
began to run.
On

December

14,

2007,

petitioner

filed

a

state

post-

conviction action pursuant to K.S.A. 60-1507 the District Court
of Wyandotte County, tolling the limitation period after 172
days.
On April 14, 2008, the state district court denied relief.
Petitioner filed an appeal, and the KCOA affirmed the denial on
December 18, 2009.2
March 8, 2010.

The Kansas Supreme Court denied review on

The limitation period began to run again, with

193 days remaining, and expired on September 27, 2010.
The undated petition for habeas corpus was filed by the
clerk of the court on March 1, 2011.
Here, the petitioner’s conviction became final for habeas
corpus purposes upon the expiration of the 90-day period in
which petitioner could seek review in the United States Supreme
Court.

Lock v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001).

1

State v. Vincent, 2006 WL 8740877 (Kan. App. Dec. 15, 2006).
2

Vincent v. State, 2009 WL 5062432 (Kan. App. Dec. 18, 2009).
3

The limitation period ran from June 25, 2007, to December 14,
2007, a period of 172 days.
Petitioner filed a motion for state post-conviction relief
on December 14, 2007, which tolled the limitation period.
U.S.C. § 2244(d)(2).

28

The limitation period remained tolled

during the pendency of that action, and resumed running, but did
not start over, when the Kansas Supreme Court denied review on
March 18, 2010.

The remaining 193 days of the limitations

period expired on September 27, 2010.
Because petitioner did not commence this action until March
2011, this action is time-barred.

Petitioner has not presented

any evidence of extraordinary circumstances that would justify
equitable tolling, and the court concludes this matter must be
dismissed.
IT IS, THEREFORE, BY THE COURT ORDERED the respondent’s
motion to dismiss (Doc. 12) is granted.
Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.
Dated at Topeka, Kansas, this 4th day of October, 2011.

S/ Sam A. Crow
SAM A. CROW
United States Senior District Judge
4