Russell v. Kansas, State of et al

Filing 4

MEMORANDUM AND ORDER ENTERED: Petitioner is granted to and including May 20, 2011, to provide a financial statement from jail authorities showing the current balance, if any, in his account. Petitioner is granted to and including May 20, 2011, to id entify any basis for equitable tolling. The failure to file a timely response may result in the dismissal of this matter without additional prior notice. Signed by Senior District Judge Sam A. Crow on 4/20/2011. (Mailed to pro se party Julian L. Russell by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JULIAN L. RUSSELL,
Petitioner,
CIVIL ACTION
No. 11-3056-SAC

vs.
STATE OF KANSAS, et al.,

Respondents.

MEMORANDUM AND ORDER
This matter comes before the court on a petition for habeas
corpus filed pursuant to 28 U.S.C. § 2254.

Petitioner is

incarcerated in the Marion County Jail and proceeds pro se.

He

filed a motion for leave to proceed in forma pauperis (Doc. 2);
however, because that motion is not supported by a statement of
the

balance

in

his

jail

account,

he

will

be

directed

to

supplement the record.1
Background
Petitioner was convicted in the District Court of Sedgwick

1

D. Kan. R. 9.1(g) requires an incarcerated pro se petitioner
to submit “a certificate executed by an authorized officer
of the institution...stating the amount of money or
securities on deposit to his...credit in any account in the
institution.”

County, Kansas, in 2009.

He was sentenced to a term of twenty-

four months and lifetime supervision.

He did not appeal.

In early 2011, petitioner received a probation violation
hearing.
adequate

He appears to complain that he did not receive
assistance

because

assigned to assist him.

his

original

counsel

was

not

The court has found no record of an

appeal.
Discussion
Petitioner appears to contend he has been subjected to
cruel and unusual punishment as a result of the imposition of
lifetime post-release supervision. He states he did not exhaust
state court remedies because he received ineffective assistance
of counsel at the guilty plea, and he specifically claims he was
not advised of appellate remedies.
Pursuant to 28 U.S.C. § 2254(b)(1), a petition for habeas
corpus may not be granted unless it appears that the petitioner
has exhausted state remedies or that no adequate state remedy
is available.

See O'Sullivan v. Boerckel, 526 U.S. 838 (1999).

It is long-settled that federal courts generally should not
review habeas corpus claims until a state prisoner exhausts
available state
(1971).

remedies.

Picard v. Connor, 404 U.S. 270, 275

This requirement is met when the state appellate courts

have had the opportunity to consider the same claims presented
2

to the federal court, or when the petitioner has no state
remedy.

Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.),

cert. denied, 506 U.S. 924 (1992).
There is a one-year limitation period for presenting a
28 U.S.C. § 2244(d).2

federal habeas corpus action.

On the

facts stated in the petition, it does not appear that petitioner
could timely present a federal habeas corpus petition, as the
limitation period began to run no later than mid-2009.
However, “the timeliness provision in the federal habeas

2

The statute provides:
(1) A –year period of limitation shall apply to an
application for a 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—
(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.
(2) The 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 shall not be counted toward any period of
limitation under this subsection.

3

corpus statute is subject to equitable tolling.”
Florida, 130 S.Ct. 2549, 2554 (2010).

Holland v.

A prisoner may be

entitled to such tolling if he demonstrates “(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary

circumstance

filing.”

stood

in

his

way

and

prevented

Id. at 2652 (internal citations omitted).

timely

See also

Woodward v. Williams, 263 F.3d 1135, 1142–43 (10th Cir. 2001)
(stating that “AEDPA's statute of limitations is subject to
equitable tolling only when an inmate diligently pursues his
claims and demonstrates that the failure to timely file was
caused

by

extraordinary

circumstances

beyond

his

control”)

(quotation and citation omitted).
Accordingly, the court will grant petitioner an opportunity
to identify any grounds for equitable tolling in this matter.
If he fails to present an adequate basis for such tolling, or if
he fails to respond, this matter will be dismissed.
Finally, the court notes that petitioner may be allowed to
present his claims to the state courts by a post-conviction
action.

The court offers no opinion on whether that remedy

remains available.
IT

IS,

THEREFORE,

BY

THE

COURT

ORDERED

petitioner

is

granted to and including May 20, 2011, to provide a financial
statement from jail authorities showing the current balance, if
4

any, in his account there.
IT IS FURTHER ORDERED petitioner is granted to and including May 20, 2011, to identify any basis for equitable tolling.
The failure to file a timely response may result in the dismissal of this matter without additional prior notice.
A copy of this order shall be transmitted to the petitioner.
IT IS SO ORDERED.
Dated at Topeka, Kansas, this 20th day of April, 2011.

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

5