Pollock v. Roberts et al

Filing 13

MEMORANDUM AND ORDER ENTERED: Petitioner's motions 2 & 8 for leave to proceed in forma pauperis are granted. Petitioner's motion 10 for audit is denied. Petitioner's claim alleging the denial of adequate medical care is dismis sed without prejudice. Petitioner may commence a separate action pursuant to 42 U.S.C. 1983 if he wishes to pursue relief on that claim. Petitioner is granted to and including May 31, 2012, to show cause why the remaining claims should not be dismissed. 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 5/10/2012. (Mailed to pro se party James M. Pollock by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES M. POLLOCK,
Petitioner,
v.

CASE NO. 11-3125-SAC

RAY ROBERTS, et al.,
Respondents.

MEMORANDUM AND ORDER
This matter comes before the court upon petitioner’s motions
for leave to proceed in forma pauperis (Docs. 2 and 8) and motion
for audit (Doc. 10).
Background
Petitioner, a prisoner at the Lansing Correctional Facility,
commenced this matter pursuant to 28 U.S.C. § 2254. The petition
contains

three

grounds

challenging

the

validity

of

his

1983

convictions and one ground alleging a denial of adequate medical
attention

for

an

aortic

aneurysm.

Petitioner

later

filed

an

emergency motion to appoint counsel, in which he alleged he had been
denied surgery for that medical condition, leaving him “under a
death watch” (Doc. 3).
The

court

appointed

counsel

for

the

limited

purpose

of

representing the petitioner by investigating whether a claim should
be filed pursuant to 42 U.S.C. § 1983 concerning the petitioner’s

access to medical care. Counsel completed the investigation and
filed a motion to withdraw. By an order entered May 8, 2012, the
court granted that motion.
Discussion
Motions to proceed in forma pauperis
Petitioner has filed two motions for leave to proceed in forma
pauperis.

The

court

has

reviewed

the

motions

and

concludes

petitioner lacks the financial resources to pay the $5.00 filing fee
in this matter. The motions to proceed in forma pauperis are
granted.
Motion for audit
Petitioner also moves the court to conduct an independent audit
of his institutional financial account. This request is not relevant
to the petition for habeas corpus, and the court declines to order
such an audit. Petitioner may present any questions concerning the
management of his account through the institutional administrative
remedy procedure.1
The petition
Petitioner

was

convicted

in

1983

of

aggravated

sodomy,

aggravated battery, and felony theft. State v. Pollock, 688 P.2d 744
(Table) (Kan. 1984). In 1986, he filed a motion for post-conviction
relief pursuant to K.S.A. 60-1507. Relief was denied in October
1

Pursuant to the Prison Litigation Reform Act, “[n]o action
shall be brought with respect to prison conditions under
section 1983... or any other Federal law, by a
prisoner...until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a).
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1986. He filed a petition for mandamus in the Kansas Supreme Court
which was denied in October 1986. Appeals were denied in November
1986 and January 1987.
It does not appear that petitioner pursued any legal challenge
to his conviction between 1987 and late 2009, although he purchased
a trial transcript in 1993.
In

2009,

petitioner

filed

a

state

post-conviction

action

pursuant to K.S.A. 60-1507. Relief was denied in February 2010. He
then filed a state action pursuant to K.S.A. 60-1501; that action
was dismissed in February 2011.
Petitioner commenced this action in July 2011. The court has
examined the petition and liberally construes it to present four
grounds for relief, namely:
1. He was denied due process and equal protection by
defense counsel’s failure to file subpoenas for witnesses
and evidence and by defense counsel’s bias against him;
2. He was denied due process and equal protection by
defense counsel’s refusal to allow him access to the trial
transcripts;
3. The Kansas Parole Board erred in setting off his
parole by three years in 1998; and
4. He has been denied surgery for an aortic aneurysm.
A petition for habeas corpus is the proper remedy for a
prisoner challenging the legality of a conviction or sentence and
seeking release from confinement or a shorter sentence. In contrast,
a state prisoner who challenges the conditions of confinement must
proceed under 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S.
475, 499-500 (1973); Boyce v. Ashcroft, 251 F.3d 911, 914 (10th
Cir.2001)(contrasting the habeas corpus and civil rights remedies),
vacated as moot, 268 F.3d 953 (10th Cir.2001).
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Petitioner’s claim concerning the denial of adequate medical
care is a claim concerning the conditions of his confinement, and
therefore, if he wishes to pursue relief on that claim, he must
proceed in a civil rights action. The court will dismiss that claim
from this action without prejudice.
The remaining three claims sound in habeas corpus. These claims
are governed by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). The AEDPA, effective April 24, 1996, imposed a oneyear limitation period for the filing of a federal habeas corpus
petition by a state prisoner. 28 U.S.C. § 2244(d)(1).
Because petitioner’s conviction became final before the AEDPA’s
enactment on April 24, 1996, he had one year from that date to seek
federal habeas corpus relief. See Fisher v. Gibson, 262 F.3d 1135,
1142 (10th Cir. 2001). Accordingly, unless the limitation period was
tolled, the limitation period expired on April 24, 1997.
Under the AEDPA, the limitation period is tolled, or stopped,
during the pendency of a state court action for post-conviction
relief that is properly filed during the limitation period. 28
U.S.C. § 2244(d)(2). Likewise, the limitation period is subject to
equitable tolling “in rare and exceptional circumstances”. Gibson v.
Klinger, 232 F.3d 799, 808 (10th Cir. 2000), cert. denied, 526 U.S.
1074

(1999)).

Equitable

tolling

is

available

if

“an

inmate

diligently pursues his claims and demonstrates that the failure to
timely file was caused by extraordinary circumstances beyond his
control.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert.
denied, 525 U.S. 891 (1998).
4

The court’s review of the record suggests that petitioner did
not file this petition for habeas corpus in a timely manner. The
record does not shows that he took any action to challenge his 1983
conviction during the one-year period following the enactment of the
AEDPA; in fact, it appears he took no action between 1986 and
October 2009, except the purchase of a trial transcript in 1993.
And, while petitioner’s state K.S.A. 60-1501 action concerning
his parole eligibility was filed in 2010 and dismissed in 2011, it
does not appear he pursued state appellate remedies from that
decision. Only claims that have been properly exhausted may be
presented for habeas corpus review. See Montez v. McKinna, 208 F.3d
862, 866 (10th Cir. 2000)(state court remedies must be exhausted
before a petitioner may seek federal habeas corpus relief).
Accordingly, the court will direct the petitioner to show cause
why his habeas corpus claims should not be dismissed due to his
failure to present the challenges to the legality of his conviction
within the one year limitation period and due to his failure to
present his claims concerning the denial of parole to the state
appellate courts.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motions for
leave to proceed in forma pauperis (Docs. 2 and 8) are granted.
IT IS FURTHER ORDERED petitioner’s motion for audit (Doc. 10)
is denied.
IT IS FURTHER ORDERED petitioner’s claim alleging the denial of
adequate medical care is dismissed without prejudice. Petitioner may
commence a separate action pursuant to 42 U.S.C. § 1983 if he wishes
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to pursue relief on that claim.
IT IS FURTHER ORDERED petitioner is granted to and including
May 31, 2012, to show cause why the remaining claims should not be
dismissed for the reasons set forth herein. 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:

This 10th day of May, 2012, at Topeka, Kansas.

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

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