Johnson v. Kansas, State of et al
ORDER ENTERED: Petitioner is granted thirty (30) days to show cause why this petition for writ of habeas corpus should not be dismissed. Signed by Senior District Judge Sam A. Crow on 6/23/2011. (Mailed to pro se party Cheron T. Johnson by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHERON T. JOHNSON,
STATE OF KANSAS,
O R D E R
This petition for writ of habeas corpus was filed pursuant to
28 U.S.C. § 2254 by an inmate of the Lansing Correctional Facility,
The filing fee has been paid.
Petitioner was convicted, upon his plea of no contest in the
District Court of Sedgwick County, Wichita, Kansas, of First Degree
Murder and Aggravated Robbery.
He was sentenced on March 21, 2001,
to concurrent sentences of Hard 25 to Life and 71 months.
not directly appeal his conviction.
In February 2002, Mr. Johnson “moved to allow the late filing
of a notice of appeal” but the trial court denied his motion.
Johnson v. State, 221 P.3d 1147, 1149 (Kan.App. 2009).
2002, Johnson moved to withdraw his nolo contendere plea, and the
trial court summarily denied his motion.
appealed the trial court’s denial of his motion to withdraw his
He “later testified that he had not received timely
notice of the trial court’s decision or any information about
appealing the decision.”
Id. at 1150.
On July 15, 2004, Mr. Johnson filed a motion pursuant to K.S.A.
60-1507 in the Sedgwick County District Court claiming ineffective
assistance of counsel.
Counsel was appointed, an evidentiary
hearing was held, and relief was denied on August 7, 2008.
appealed to the Kansas Court of Appeals (KCA) which affirmed on
December 11, 2009. The Kansas Supreme Court denied his Petition for
Review on October 7, 2010. Mr. Johnson executed the instant federal
habeas corpus petition on April 12, 2011.
As grounds for his federal petition, Mr. Johnson alleges (1)
that his trial counsel’s dependency on crack cocaine rendered his
performance ineffective during the state criminal proceedings; (2)
that trial counsel improperly induced and coerced defendant to enter
an involuntary plea; and (3) that the state court’s determination
that trial counsel was not ineffective was “manifest injustice.”
Petitioner alleges that he raised grounds (1) and (2) in his
state post-conviction motion.
As to ground (3), he alleges that it
could not have been raised because it “is a claim of manifest
injustice regarding the State’s highest court determination.”
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).
provides, however, for tolling of the statute of limitations during
the pendency of any “properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim . . . .”
28 U.S.C. § 2244(d)(2).
It appears from
tolling, his federal Petition is time barred.
Applying the statutory provisions to the facts of this case,
the court tentatively finds that petitioner’s convictions “became
final” for limitations purposes on or about March 31, 2001.1
statute of limitations began to run on this date, and ran unimpeded
until March 31, 2002.
Mr. Johnson’s filing in February 2002 of a motion to docket
late appeal did not toll the limitations period, because it was
Had it been granted, the time from March 31, 2001, might
have been tolled.
His filing of the motion to withdraw his plea in April 2002,
had no tolling effect because the statute of limitations had already
expired in March.
Even if it this motion were filed before the
limitations period expired, it was summarily denied by the trial
court and not appealed.
Mr. Johnson does not provide the date of
the trial court’s decision.
Petitioner’s filing of his 60-1507
state post-conviction motion on July 15, 2004, did not toll the
federal limitations period because it was filed years after the
federal statute of limitations period had already expired.
application was timely filed. In support, he alleges that the state
injustice exception against being time barred (AEDPA).” He exhibits
the state district court’s decision on his 60-1507 motion, in which
the court at the outset denied the State’s Motion to Dismiss as
Petitioner had ten (10) days to file a motion to withdraw his plea,
and he allowed the time to elapse.
“application for review be filed in state district court within one
The court found, as petitioner alleges, that “it would
create a ‘manifest injustice’ as that term is employed in K.S.A. 601507(f)(2) if the motion was dismissed without addressing the merits
of movant’s allegations.”
He thus alleges that the “trial court
determined that petitioner’s application was not time barred.”
Based on these allegations, he asserts that the one-year federal
limitations period did not commence in his case until the Kansas
Supreme Court denied his Petition for Review in connection with his
60-1507 state proceedings, which was on October 7, 2010.
As noted, the ruling by the state district court on Mr.
Johnson’s post-conviction motion did not grant him the right to file
a direct appeal out-of-time, and in fact petitioner was denied that
Cf. Jimenez v. Quarterman, 555 U.S. 113 (2009); Orange v.
Calbone, 318 F.3d 1167 (10th Cir. 2003) (Oklahoma’s “appeal out of
time” proceeding was part of direct review process for purposes of
28 U.S.C. § 2244(d)(1)(A)).
Thus, the state court decision did not
render his conviction non-final for purposes of AEDPA’s one-year
statute of limitations.
The Tenth Circuit has rejected the similar
argument that the federal statute of limitations under § 2244 should
not have commenced at the time the petitioner’s conviction was
“final” under § 2244(d) because the state court subsequently found
that his state post-conviction motion was not time-barred under 601507(2). The Circuit Court reasoned that because the petitioner did
not file his § 60-1507(f)(2) motion until after expiration of the
time limits set by § 2244(d)(1), the filing had no tolling effect.
See Bryant v. State of Kansas, 229 Fed.Appx. 797, 798 (10th Cir.
2007)(unpublished opinion)2; see also Fisher v. Gibson, 262 F.3d
1135, 1142-43 (10th Cir. 2001).
Here, petitioner’s 60-1507 motion
was filed more than two years after the time limits set by §
2244(d)(1) had expired. It follows that petitioner’s allegations do
not indicate his entitlement to a later start date for the federal
limitations period than the date his conviction became final.
court concludes that plaintiff has not alleged facts indicating that
he is entitled to any additional statutory tolling.
Nor does petitioner allege facts indicating he is entitled to
A litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstances
stood in his way.”
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);
see Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000), cert.
denied, 531 U.S. 1194 (2001)(Equitable tolling “is only available
when an inmate diligently pursues his claims and demonstrates that
the failure to timely file was caused by extraordinary circumstances
beyond his control.”).
In the habeas corpus context, equitable
tolling has been limited to “rare and exceptional circumstances.”
Gibson v. Klinger, 232 F.3d 799, 800 (10th Cir. 2000).
Circuit has stated that equitable tolling “would be appropriate, for
example, when a prisoner is actually innocent, when an adversary’s
conduct--or other uncontrollable circumstance--prevents a prisoner
from timely filing, or when a prisoner actively pursues judicial
Id. (internal citations omitted); Burger v. Scott, 317
This unpublished opinion is not cited as binding precedent but for
persuasive value. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.
F.3d 1133, 1141 (10th Cir. 2003.
“Simple excusable neglect is not
sufficient.” Gibson, 232 F.3d at 808.
Petitioner will be given time to show cause why this petition
for writ of habeas corpus should not be dismissed as time barred
under 28 U.S.C. § 2244(d)(1).
If he fails to show cause within the
time provided, this action may be dismissed without further notice.
IT IS THEREFORE ORDERED that petitioner is granted thirty (30)
days to show cause why this petition for writ of habeas corpus, 28
U.S.C. 2254, should not be dismissed as time barred under 28 U.S.C.
IT IS SO ORDERED.
Dated this 23rd day of June, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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