Johns (ID 07993) v. McKune et al

Filing 2

ORDER ENTERED: Petitioner is granted thirty (30) days in which to allege facts showing his entitlement to equitable tolling or to otherwise show cause why this action shall be dismissed as time-barred. Signed by Senior District Judge Sam A. Crow on 4/10/2012. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NATHANIEL JOHNS,
Petitioner,
v.

CASE NO. 12-3037-SAC

DAVID R. McKUNE,
Warden, et al.,
Respondents.
O R D E R
This pro se petition for writ of habeas corpus was filed
pursuant

to

28

U.S.C.

§

2254

by

an

inmate

Correctional Facility, Lansing, Kansas.

of

the

Lansing

The filing fee has been

paid.
The available record shows that Mr. Johns was convicted by a
jury in the District Court of Wyandotte County, Kansas, of Felony
Murder,

Aggravated

Assault,

Aggravated

Robbery,

two

counts

of

Aggravated Battery, Theft ($150.00 or more), and Unlawful Possession
of Firearms. He was sentenced on October 10, 1984, to “Life, plus.”
He directly appealed his conviction, and the Kansas Supreme Court
affirmed on May 10, 1985.
On July 15, 2009, Mr. Johns filed a state post-conviction
motion pursuant to K.S.A. § 60-1507 in the Wyandotte County District
Court, which was denied without a hearing.

He appealed the denial

to the Kansas Court of Appeals, which affirmed on May 20, 2011.

The

Kansas Supreme Court denied his Petition for Review on October 24,
2011.

See Johns v. State, Dist.Ct.Case No. 09 CV 1211 (Kansas

App.No. 103409).
It appears from the face of this Petition that it is timebarred.

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).
The Kansas Supreme Court affirmed Mr. Johns’ conviction on

direct appeal on May 10, 1985.

The statute of limitations for

federal habeas petitions was not effective until April 24, 1996. It
is well-settled that for state prisoners whose convictions became
final before the effective date, the one-year statute of limitations
does not begin to run until April 24, 1996.
F.3d 1223, 1225 (10th Cir. 1998).

Hoggro v. Boone, 150

Thus, the one-year statute of

limitations period in which Mr. Johns was required to file a federal
habeas corpus petition challenging his 1984 convictions or sentence
began to run on April 24, 1996.

Unless this limitations period was

tolled in some manner, it expired a year later on April 24, 1997.
There is nothing in the Petition or the record before the court
to suggest that Mr. Johns had a tolling-type post-conviction action
pending in state court between April 24, 1996, and April 24, 1997.
The two post-conviction motions he did file in state court had no
tolling effect because they were filed years after the federal
limitations period had already expired.

The earlier one was filed

on April 22, 2003, and was pending until the Supreme Court’s
2

affirmance on April 22, 2005.

The other was filed even later, on

July 15, 2009, and was pending until the Kansas Supreme Court denied
review on October 24, 2011.1

It follows that he is not entitled to

additional statutory tolling.
Nor does Mr. Johns allege sufficient facts to establish that
his case falls under the circumstances enumerated at § 2244(d)(1)(B)
through (D)2 so that he is entitled to a later start date for the

1

In Mr. Johns’ most recent state post-conviction proceedings, the state
appellate court found as follows:
Here, Johns’ and Kingyon’s convictions were affirmed by the Kansas
Supreme Court in State v. Johns, 237 Kan, 402, 699 P.2d 538 (1985).
If we take into account the denial of Johns’ motion for sentence
conversion which was affirmed by this court on April 22, 2005, see
State v. Johns, No. 92,514, unpublished opinion filed April 22, 2005,
Johns had until April 22, 2006, to file this motion.
Johns’ and
Kingyon’s motions were indeed untimely filed under K.S.A. 60–1507(f)
because they were not filed until July 15, 2009—some 24 years after
the Supreme Court's ruling. Neither movant argued manifest injustice
to the district court as a possible reason to entertain their
untimely motions.
Johns v. State, 251 P.3d 673, *1, 2011 WL 2040242 (Kan.App. May 20, 2011)(Table).
2

28 U.S.C. § 2244(d) provides:

(1) A 1-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

limitations

period.

Petitioner’s

bald

allegations

of

newly

discovered evidence and intervening change in the law are refuted by
the findings in the order of the state district court judge attached
to his petition.3

The court assumes that the issues Mr. Johns

raises in his federal Petition are the same as those raised in his
last state post-conviction motion.4

If they are not the same, then

it would appear that he has not exhausted the claims in his federal
Petition.

The state district court denied petitioner’s claims as

untimely.5

However, he also found that even if the motion had been

3
Petitioner attaches a copy of Judge Groneman’s decision on his 60-1507
petition dated October 22, 2009. Therein, the judge found that an evidentiary
hearing was not required and no legal or factual issue raised in the petition
required the appointment of counsel. The judge further found:

Petitioner’s motion which was filed on July 15, 2009, raised three
issues, none of which were raised on his direct appeal which was
decided by final order on May 10, 1985 . . . .
* * *
The three issues raised by the petitioner have been known to him
since the time of his conviction and sentencing.
The petitioner
argued unsuccessfully in his direct appeal that K.S.A. 21-3401 did
not extend to acts committed “in flight from a dangerous felony”
(issue 1). Ms. McNeary’s testimony concerning the leniency extended
to her in exchange for her testimony, whether erroneous or not, has
been known to the petitioner since he heard her testimony during his
trial (issue 2). If as plaintiff claims he never read or reviewed
the presentence report before sentencing, he had to have been aware
of this fact since he was sentenced (issue 3). The petitioner offers
no explanation for the unreasonable delay of 24 years to raise these
three issues.
Petition (Doc. 1) Attach. 2: Johns v. State, Case No. 09-CV-1211 (Wyan.Co.Dist.Ct.
October 22, 2009) at 2.
Judge Groneman explicitly discussed each of these
holdings in more detail in this order.
4
In his federal Petition, Mr. Johns’ claims are difficult to
comprehend. It appears that he claims (1) an intervening change in “procedural
law” after his direct appeal, (2) the State withheld the terms of its plea
agreement with Rosemarie McNeary from the Jury/defense during her testimony, (3)
the presentence investigation report (psi) was not provided to defense counsel and
the defendant at least ten days before sentencing, (4) the state habeas court
erred in denying petitioner’s 60-1507 petition without appointing counsel and with
an evidentiary hearing.
5
The state district judge held that pursuant to K.S.A. 60-1507(f) any
action brought under K.S.A. 60-1507 must be filed within one year of “the final
order of the last Appellate Court in this State to exercise jurisdiction on a
direct appeal or the termination of such appellate jurisdiction,” and that Mr.
Johns’ state petition was not filed within that time frame. The 60-1507 petition

4

timely filed, the court’s review of the three issues raised, “the
court file and all documents constituting the record in this case,
show( ) the petitioner is not entitled to relief. . . .”

In denying

each of these claims, the state district court convincingly reasoned
that these claims were known to petitioner at the time of his
conviction and sentence, and thus could have been raised on direct
appeal.
Since

petitioner

is

not

entitled

to

additional

statutory

tolling or a later start date, he must allege facts demonstrating
his entitlement to equitable tolling.

Equitable tolling of the

limitation period is allowed when “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);
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000), cert. denied,
531 U.S. 1194 (2001).
Complaints about unfamiliarity with the legal process and
illiteracy
tolling.

have

been

found

to

provide no

basis

for

equitable

See Scott v. Johnson, 227 F.3d 260, 263 FN3 (5th Cir.

2000), cert. denied, 532 U.S. 963 (2001).

Moreover, ignorance of

the law generally and of the AEDPA time limit in particular will not
excuse untimely filing, even for an incarcerated pro se prisoner.
Marsh, 223 F.3d at 1220; Miller, 141 F.3d at 978; Gibson v. Klinger,
232 F.3d

799,

808 (10th

Cir.

2000).

In

addition,

complaints

regarding post-conviction counsel do not entitle a petitioner to
equitable tolling.

As the Tenth Circuit explained in Hallcy v.

was therefore “deemed untimely” and dismissed.

5

Milyard, 387 Fed.Appx. 858, 860 (10th Cir. 2010)(unpublished)6:
The Supreme Court has recently affirmed that § 2244(d)’s
limitations period is subject to equitable tolling.
Holland v. Florida, 78 U.S.L.W. 4555, No. 09-5327, 2010 WL
2346549, at *9 (U.S. June 14, 2010). But, in doing so,
the Court also affirmed that a habeas petitioner seeking
equitable tolling must clear a high hurdle. “[A]
petitioner is entitled to equitable tolling only if he
shows (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.” (Citations omitted).
Id. at 859.
Petitioner’s allegations in his Petition regarding timeliness
are nothing more than the restatement of some of his claims,
interspersed with bald allegations of manifest injustice, newly
discovered evidence, and intervening change in the law.7

They are

clearly not sufficient to show either than he diligently pursued his
claims or that he is legally entitled to equitable tolling.

He will

be given an opportunity to state facts establishing that he is
entitled to equitable tolling.

If he fails to present such facts

within the time provided, this action will be dismissed as timebarred.
IT IS THEREFORE BY THE COURT ORDERED that petitioner is granted
thirty (30) days in which to allege facts showing his entitlement to
equitable tolling or to otherwise show cause why this action shall
be dismissed as time-barred.
IT IS SO ORDERED.

6
Unpublished opinions are not cited herein as binding precedent, but
for persuasive value. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.
7
In response to the question on timeliness in his federal Petition, Mr.
Johns states that K.S.A. 60-1507(F)(2) and Kan.S.Ct. Rule 183 allow “a Manifest
Injustice claim to be raised at any time” and that the issue of manifest justice
is now before this court as an exception to the federal court time-bar. He also
states that he “presented newly discovered evidence that could only be presented
upon the change in the Kansas laws/Supreme Court ruling.” In addition, he states
“Intervening Change in Kansas Laws/Procedural Laws.”

6

Dated this 10th day of April, 2012, at Topeka, Kansas.

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

7