Garza v. Kansas, State of et al

Filing 4

ORDER ENTERED: Petitioner's motion 2 to proceed in forma pauperis is granted. Petitioner's motion 3 to appoint counsel is denied. Petitioner is granted thirty (30) days to show cause why this petition for writ of habeas corpus should not be dismissed for failure to exhaust state court remedies and as time barred under 28 U.S.C. 2244(d)(1). Signed by Senio District Judge Sam A. Crow on 7/19/2011. (Mailed to pro se party Jose Garza by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSE GARZA,
Petitioner,
v.

CASE NO.

11-3127-SAC

STATE OF KANSAS,
Respondent.
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 Larned Correctional Mental
Health Facility, Larned, Kansas. Petitioner has also filed a Motion
to

Proceed

in

forma

pauperis,

with

financial

data

attached

indicating that the motion should be granted.
The background facts relevant to this action are succinctly set
forth in Garza v. State, 240 P.3d 986, *1 (Kan.App. Oct. 29, 2010,
Table) as follows:
On December 11, 2000, Jose Garza pled guilty pursuant to
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970), to robbery and attempted aggravated
robbery in case No. 2000–CR–2775.
He received a
controlling sentence of 32 months in prison.
On August 27, 2001, Garza pled no contest in case No.
2001–CR–347 to six counts of rape and one count each of
robbery, aggravated robbery, and battery. On that same
day, he was sentenced to a downward departure prison term
of 420 months to run concurrent with the sentence imposed
in 2000–CR–2775. Garza did not pursue a direct appeal
from either case.
On June 6, 2007, Garza filed his K.S.A. 60–1507 motion on
the standard printed form for such motions. In response
to a question on the form regarding whether he appealed
from his judgments or convictions, he stated, “I was going
to plea [ sic ] insanity but my layer [ sic ] said I
couldn't.” He also alleged that he was legally insane and
on medications at the time he committed his crimes. He
stated he was not innocent but wished to be placed in a
hospital if he had mental problems. Garza also filed a
motion requesting counsel be appointed to represent him on

the K.S.A. 60–1507 motion.
In addition to these motions, Garza sent numerous letters
to the court which may have been taken into consideration
when the court issued its ruling.
In one, Garza
reiterated that he wished to enter an insanity plea but
his lawyer “told [him] no.” In another, he claimed he was
not in the right state of mind when he was committing his
crimes and “was being controlled by someone inside of me.”
He also claimed he had been diagnosed with post-traumatic
stress disorder prior to committing his crimes and had
been diagnosed with paranoid schizophrenia while in
prison.
The district court denied Garza’s motion for appointment
of counsel and a hearing, concluding that there was no
substantial question of law or triable issue of fact and
that the files and records conclusively showed that he was
not entitled to relief. Noting that Kansas had redefined
the insanity approach in 1996 in favor of the mens rea
approach, that Garza’s position might be more plausible in
a jurisdiction that continued to recognize an insanity
defense, that Garza failed to identify any records or
witnesses who would support his claim of a mental
disorder, and that Garza made statements during the plea
hearing inconsistent with any claim of mental disorder,
the court summarily denied Garza’s motion. . . .
Id.

An exhibit attached to the federal Petition indicates that Mr.

Garza’s 2007 60-1507 motion1 was denied by the Shawnee County
District Court on March 9, 2009.

Mr. Garza was allowed to docket an

out-of-time appeal of that denial to the Kansas Court of Appeals
(KCA), and counsel was appointed to represent him.
affirmed by the KCA on October 29, 2010.

The denial was

Id. (App. Case No.

102935). Petitioner apparently did not appeal the KCA’s decision to
the Kansas Supreme Court.
As grounds for this federal Petition, Mr. Garza claims “without
due process of law 14th Amendment.”

He alleges that he did not

exhaust state remedies on this claim due to “ineffective assistance

1

The KCA referred to this action as Garza’s “2007 motion to withdraw
his pleas of guilty and no contest to a host of charges,” and affirmed the denial
“whether we treat the motion as a 60-1507 motion or as a motion to withdraw plea
under K.S.A. 22-3210(d).” Id. at *1.

2

of counsel.”

He incorrectly alleges that he raised this issue on

direct appeal of his conviction, but did not raise it in a postconviction motion. Petitioner attaches a copy of the Kansas statute
that provides for a Motion for Relief from Judgment, K.S.A. § 60260.
As ground 2, petitioner claims cruel and unusual punishment.
As supporting facts, he alleges “raped at Lansing Correctional
Facility by two inmates and a gaurd (sic).”

He states that he did

not raise this on direct appeal of his criminal conviction because
it happened after his conviction.
Petitioner admits in his Petition that he has not exhausted
state court remedies on all grounds for relief raised in his
Petition.
In response to the question on timeliness, Mr. Garza simply
writes “ineffective assistance of counsel.”
Having screened Mr. Garza’s federal Petition, the court finds
that it is subject to being dismissed for two reasons.

First, Mr.

Garza has clearly not exhausted state court remedies on all his
claims.2

Secondly, the Petition appears to have not been timely

filed.

2

28 U.S.C. 2254(b)(1) provides:

An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that –- (A) the applicant has exhausted the remedies available in the courts of
the State. . . .
“A state prisoner must give the state courts an opportunity to act on his claims
before he presents those claims to a federal court in a habeas petition.”
Generally, the exhaustion
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
prerequisite is not satisfied unless all claims asserted have been presented by
“invoking one complete round of the State’s established appellate review process.”
Id. at 845. In this district, that means the claims must have been “properly
presented” as federal constitutional issues “to the highest state court, either
by direct review of the conviction or in a post-conviction attack.” Dever v.
Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).

3

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 . . . (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 . . . .
A statutory exception exists in that 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 . . .
.” 28 U.S.C. § 2244(d)(2).
Applying the statutory provisions to the facts of this case, it
appears petitioner’s convictions “became final” for limitations
purposes in 2000 or 2001.3

The statute of limitations began to run

at that time, and expired no later than December 31, 2002.

The

limitation period was not tolled during the pendency of petitioner’s
“properly filed” 60-1507 action, because this motion was not filed
until years after the statute of limitations had already expired.
Since

petitioner

does

not

appear

to

be

entitled

to

any

additional statutory tolling, the only question is whether or not he
is entitled to equitable tolling.

In response to the question

regarding timeliness on his form petition, petitioner baldly states
“ineffective assistance of counsel.”

However, it does not appear

that he was represented by counsel for any purpose during the time
the federal statute of limitations was running.

Petitioner will be

given the opportunity to state facts showing that he is entitled to
equitable tolling from the time that the statute of limitations

3
Since Mr. Garza did not directly appeal his criminal conviction and
sentence, his conviction became “final” for purposes of § 2244 after his time for
filing a direct appeal expired.

4

began running in this case until he filed his 60-1507 motion in
2007.
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.”
Klinger, 232 F.3d 799, 800 (10th Cir. 2000).

Gibson v.

The Tenth 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 remedies
but files a defective pleading during the statutory period.”

Id.

(internal citations omitted); Burger v. Scott, 317 F.3d 1133, 1141
(10th Cir. 2003.

“Simple excusable neglect is not sufficient.”

Gibson, 232 F.3d at 808.
Mr. Garza is given time to allege facts showing that he is
entitled to equitable tolling and to otherwise 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) as well as for failure to
exhaust state court remedies.

If he fails to show cause within the

time allotted, this action may be dismissed without further notice.
Petitioner has also filed a Motion for Appointment of Counsel.
5

There is no entitlement to assistance of counsel in a federal habeas
corpus proceeding.

Since this action clearly appears to be subject

to summary dismissal, the court finds that this motion should be
denied.
IT IS THEREFORE ORDERED that petitioner’s Motion to Proceed in
forma pauperis (Doc. 2) is granted, and petitioner’s Motion to
Appoint Counsel (Doc. 3) is denied.
IT IS FURTHER ORDERED that petitioner is granted thirty (30)
days to show cause why this petition for writ of habeas corpus
should not be dismissed for failure to exhaust state court remedies
and as time barred under 28 U.S.C. §

2244(d)(1).

IT IS SO ORDERED.
Dated this 19th day of July, 2011, at Topeka, Kansas.

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

6