Kingyon (ID 40739) 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 should not 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
TOMMY KINGYON,
Petitioner,
v.

CASE NO. 12-3038-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

Correctional Facility, Lansing, Kansas.

inmate

of

the

Lansing

The filing fee has been

paid.
The available record shows that Mr. Kingyon was convicted
by a jury in the District Court of Wyandotte County, Kansas, of
Murder, Aggravated Assault, Aggravated Robbery, Aggravated Battery,
Theft ($150.00 or more), and Unlawful Possession of Firearms.

He

alleges that 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.

See State v. Kingyon, 237 Kan. 402, 699

P.2d 538 (Kan. 1985).
On

July

15,

2009,

Mr.

Kingyon,

filed

a

state

post-

conviction motion pursuant to K.S.A. § 60-15071 in the Wyandotte
County District Court, which was denied without a hearing.

He

This state petition was identical to one filed by Mr.
Kingyon’s co-defendant, Mr. Johns.
Mr. Johns has also filed a
federal petition identical to this petition in Johns v. McKune,
Case No. 12-3037, that is also pending before this court.
1

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 Kingyon v. State, Dist.Ct. Case

No. 09 CV 1232 (Kansas Appellate Courts App.No. 103411 consolidated
with 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. Kingyon’s conviction

on direct appeal on May 10, 1985.

The statute of limitations for

federal habeas petitions was not effectuated until April 24, 1996.
It is well-settled that for state prisoners whose convictions
became final before that effective date, the one-year statute of
limitations does not begin to run until April 24, 1996.
Boone, 150 F.3d 1223, 1225 (10th Cir. 1998).

Hoggro v.

Thus, the one-year

statute of limitations period in which Mr. Kingyon was required to
file

a

federal

habeas

corpus

petition
2

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. Kingyon had a tolling-type state postconviction action pending between April 24, 1996, and April 24,
1997.

The one post-conviction motion he did file in state court

had no tolling effect because it was filed on July 15, 2009, years
after the federal limitations period had already expired, and was
pending until the Kansas Supreme Court denied review on October 24,
2011.2

It follows that Mr. Kingyon is not entitled to additional

statutory tolling.
Nor does Mr. Kingyon allege sufficient facts to establish
that his

case

falls

under

the

circumstances

enumerated

at §

2244(d)(1)(B) through (D)3 so that he is he is entitled to a later

2
In Mr. Kingyon’s state
appellate court found as follows:

post-conviction

proceedings,

the

state

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).
. . . 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.
Kingyon v. State,
2011)(Table).
3

251

P.3d

673,

*1,

2011

WL

2040242

(Kan.App.

May

20,

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

3

start

date

for

the

limitations

period.

Petitioner’s

bald

allegations of newly discovered evidence and intervening change in
the law are refuted by the findings in the appended order of the
state district court judge.4

The court assumes the issues Mr.

Kingyon raises in his federal Petition are the same as those raised

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.
4

Petitioner attaches a copy of the decision of Judge Groneman on Johns
and apparently his 60-1507 petitions, which is 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 dur 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. 1: Johns v. State, Case No. 09-CV-1211
(Wyan.Co.Dist.Ct. October 22, 2009) at 2. Judge Groneman explicitly discusses
each of these holdings in more detail in this order.

4

in his state post-conviction motion.5

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.6

However, the judge also found that even if

the motion had been timely filed, that 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. . . .”
court

In denying each of these claims, the state district

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.
5

In his federal Petition, Mr. Kingyon’s 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, and (4) the state habeas
court erred in denying petitioner’s 60-1507 petition without appointing counsel
and with an evidentiary hearing.
6
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.
Kingyon’s state petition was not filed within that time frame.
The 60-1507
petition was therefore “deemed untimely” and dismissed.

5

denied, 531 U.S. 1194 (2001).
Complaints about unfamiliarity with the legal process and
illiteracy have been found to provide no basis for equitable
See Scott v. Johnson, 227 F.3d 260, 263 FN3 (5th Cir.

tolling.

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
prisoner.

untimely

filing,

even

for an

incarcerated

pro

se

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.

Milyard,

387

Fed.Appx.

858,

860

(10th

Cir.

2010)(unpublished):7
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,

7

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.

6

newly discovered evidence, and intervening change in the law.8
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 time-barred.
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 should not be dismissed as time-barred.
IT IS SO ORDERED.
Dated this 10th day of April, 2012, at Topeka, Kansas.

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

8
In response to the question on timeliness in his federal Petition,
Mr. Kingyon 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.”

7