Criqui v. Kansas Department of Corrections et al

Filing 3

ORDER ENTERED: Petitioner is granted twenty (20) days to show cause why the petition should not be summarily dismissed as time barred. The failure to file a timely response may result in dismissal of the petition without further prior notice. Signed by Senior District Judge Sam A. Crow on 9/7/2011. (Mailed to pro se party Clarence D. Criqui by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CLARENCE D. CRIQUI,
Petitioner,
v.

CASE NO. 11-3118-SAC

KANSAS DEPARTMENT OF CORRECTIONS, et al.,
Respondents.

O R D E R
Petitioner proceeds pro se on a petition seeking a writ of
habeas corpus under 28 U.S.C. § 2254, and has paid the district
court filing fee.

Having reviewed the petition, the court finds

this matter is subject to being summarily dismissed as time barred.
The Antiterrorism and Effective Death Penalty Act enacted in
1996 established a one year limitation period on habeas corpus
petitions filed by prisoners confined pursuant to a state court
judgment.

28 U.S.C. § 2244(d)(1).

The one year limitation period

begins to 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.
28 U.S.C. § 2244(d)(1).

The running of the limitation period is

tolled (suspended) while a properly filed state post-conviction
proceeding and appeal therefrom is pending in the state courts.
U.S.C. § 2244(d)(2).

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The running of the limitation period is also

subject to equitable tolling, but only in rare and exceptional
circumstances, Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000),
and where the prisoner exercises due diligence in pursuing his
claims, Garcia v. Shanks, 351 F.3d 468, 473 n. 2 (10th Cir 2003).
Here, petitioner was convicted in Reno County District Court on
three counts of attempted rape, three counts of aggravated criminal
sodomy, and three counts of aggravated indecent liberties with a
child.

The Kansas Court of Appeals affirmed the conviction on

September 12, 2003, finding (1) the trial court’s exclusion of a
licensed

psychologist’s

proposed

testimony

regarding

proper

techniques for interviewing child sex abuse victims was harmless
error; (2) the exclusion of portions of Criqui’s statement to a
detective was warranted; (3) Criqui failed to provide compelling
reasons warranting court-ordered psychological evaluations of the
child

victims;

convictions.
(unpublished).

and

(4)

sufficient

evidence

supported

Criqui’s

State v. Criqui, 2003 WL 22119226 (Kan.App.2003)
The Kansas Supreme Court denied further review on

December 23, 2003.
Petitioner identifies no further action taken in the state
2

courts regarding his conviction on these charges.

He filed the

instant petition under § 2254 in this court on June 22, 2011.
It plainly appears § 2244(d)(1)(A) controls the start date for
running the one year limitation period in this case. Plaintiff does
not allege any State created impediment that prevented him from
filing his federal habeas petition earlier, § 2244(d)(B), or any
constitutional right later recognized by the United States Supreme
Court

for

retroactive

application,

§

2244(d)(C).

Although

§

2244(d)(1)(D) allows the limitation period to run from the date the
factual predicate of petitioner’s claims could have been discovered
through due diligence, that section does not apply in this case
where plaintiff appears to rely on a legal holding handed down by
the

New

Jersey

Supreme

Court

prior

proceeding and appeal in Kansas.

to

petitioner’s

criminal

See State v. Michaels, 136 N.J.

299 (1994)(holding the reliability of child victim statements and
testimony can be undermined by the use of coercive or highly
suggestive interrogation techniques).
Because petitioner filed no state court action to toll the
running

of

the

limitation

period

in

this

case,

and

because

petitioner makes no showing to suggest he would be entitled to
equitable tolling, the one year period for seeking § 2254 review of
petitioner’s conviction expired in March 2005.

Thus on the plain

face of petitioner’s pleading, the court finds the instant petition
filed more than seven years later is subject to be being dismissed
as time barred.
IT IS THEREFORE ORDERED that petitioner is granted twenty (20)
days

to

show

cause

why

the

petition
3

should

not

be

summarily

dismissed as time barred. The failure to file a timely response may
result in dismissal of the petition without further prior notice.
IT IS SO ORDERED.
DATED:

This 7th day of September 2011 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

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