Kingyon (ID 40739) v. McKune et al

Filing 4

ORDER ENTERED: This action is dismissed as time-barred and all relief is denied. To the extent petitioner's response is a motion, it is denied as moot. Signed by Senior District Judge Sam A. Crow on 3/6/2013. (Mailed to pro se party Tommy Kingyon by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TOMMY KINGYON,
Petitioner,
v.

CASE NO. 12-3038-SAC

STATE OF KANSAS,
et al.,
Respondents.
O R D E R
The court previously reviewed this pro se petition for writ
of habeas corpus, 28 U.S.C. § 2254, and found from its face that
it appeared to have not been filed within the applicable oneyear statute of limitations, 28 U.S.C. § 2244(d)(1).

Petitioner

was ordered to allege facts showing his entitlement to equitable
tolling or otherwise show cause why this action should not be
dismissed as time-barred.
Show Cause” (Doc. 3).

In response, he filed a “Petition to

Having considered petitioner’s response

together with the file and the applicable law, the court finds
that good cause is not shown and dismisses this action as timebarred.
In its prior order, the court set forth the procedural
history of petitioner’s state criminal and related collateral
proceedings.
is

not

Mr. Kingyon does not dispute that history, and it

repeated

here.

Based

on
1

its

findings,

the

court

previously held that the limitations period in which Mr. Kingyon
was required to file his federal habeas petition attacking his
1984 state convictions or sentence began to run on April 24,
1996 and ran unimpeded until it expired a year later on April
24,

1997.

Petitioner

did

not

have

a

tolling-type

post-

conviction motion pending in state court during this time frame.
The

two

effect

post-conviction
because

they

motions

were

he

litigated

filed

years

had

after

no
the

tolling
federal

limitations period had already expired.
In his response, Mr. Kingyon alleges no facts contradicting
the

court’s

earlier

findings

that

he

is

not

entitled

to

additional statutory tolling or to a later limitations start
date under § 2244(d)(1).

Instead, he repeatedly makes the same

bald assertions of newly discovered evidence, intervening change
in the law, manifest injustice, and exceptional circumstances,
as he made in his Petition.

These formulaic recitations are

still inadequate to show his entitlement to equitable tolling.
Petitioner also makes legal arguments citing mainly state law,
which

is

relief.

not

a

sufficient

basis

for

federal

habeas

corpus

When the court disregards all petitioner’s conclusory

allegations and state law citations, it is left with few, if
any,

facts

to

consider.

Nevertheless,

addresses each of petitioner’s claims.

2

the

court

briefly

Petitioner alleges that “the state court lacked subjectmatter jurisdiction as to the defective complaint/information”
and

that

this

may

be

challenged

supporting facts are alleged.

at

any

time.

However,

no

Moreover, petitioner is arguing

one of his habeas claims, rather than showing an entitlement to
equitable tolling.

The same is true of petitioner’s allegation

that

lower

the

“Kansas

unconstitutional

at

the

courts
time”

relied
of

on

law

that

was

trial

his

a

and

that

the

legislature “enact[ed] into law some 9 years later.”
Petitioner’s allegations that he “is placed in slavery when
restraints are unlawful” and slavery is prohibited by the 13th
Amendment are nothing more than conclusory statements.

They

demonstrate neither that his restraint is unlawful nor, more
cogently, that he is entitled to any type of tolling.
Petitioner’s
evidentiary

claims

hearing

and

that
written

he

was

wrongfully

findings

in

state

denied

an

collateral

proceedings are not grounds for federal habeas corpus relief and
do not show entitlement to tolling in federal court.
Petitioner’s arguments that the one-year AEDPA deadline is
not a jurisdictional bar and is subject to tolling are accurate,
but this court has contravened neither of these principles.

His

subsequent references to “these extraordinary circumstances” and
“the events beyond his control” are not facts demonstrating his
entitlement to equitable tolling.
3

Petitioner

appears

to

allege

that

the

state

refused

to

consider his “constitutional claims” due to a procedural bar and
claim

that

this

court

“must

consider”

procedurally-defaulted claims or
justice will result.

the

“merits”

of

his

a fundamental miscarriage of

His citation to Rule 52 of the Federal

Rules of Civil Procedure provides no support for this argument.
Moreover, he alleges no facts whatsoever to support a challenge
to

the

state

court’s

procedural-bar

ruling

in

his

case.

Petitioner’s argument that the procedural bar relied upon by the
Kansas Supreme Court did not constitute an adequate state ground
is not supported by any allegations of fact.
court

has

not

denied

petitioner’s

procedural default doctrine.

In any event, this

claims

based

upon

the

Petitioner also fails to allege

any facts showing that a fundamental miscarriage of justice will
result.

It is not enough for a petitioner to simply express his

opinion that he will “continue to be the victim of a miscarriage
of justice/manifest of injustice.”
Petitioner’s

bald

restatement

of

general

standards

for

granting federal habeas corpus relief, that the state court’s
decision was an unreasonable application of clearly established
Federal laws and based on an unreasonable determination of the
facts

in

light

of

the

evidence,

entitlement to equitable tolling.
reference

to

“his

attorneys’

does

nothing

to

show

his

The same is true of his bald

misconduct”
4

which

includes

no

description of any misconduct or other act on the part of his
attorney.
Some of petitioner’s allegations are simply indecipherable,
such as that “the lower State Courts is and was usurping its
power within its office over the legislation Statute in 1972.”
One of the few times petitioner references any facts from
his case, he alleges “the existence of an agreement for leniency
in exchange for McNeary’s testimony against petitioner.”

He

claims that the state had a duty to disclose “all discovery
materials,”

that

prosecution

had

there

was

knowledge

of

a

Brady

the

violation,

that

the

agreement

that

was

plea

withheld during trial, that the state had a duty to correct
false or “misspoken” testimony, that the lower courts relied on
perjured

testimony,

“demised”

before

evidence.

and

that

petitioner

However,

he

does

the

trial

obtained
not

judge

this

describe

and

newly
any

counsel

discovered

of

McNeary’s

testimony and explain how it was false or perjurious.

Nor does

he suggest how these arguments in support of one of his asserted
grounds entitle him to equitable tolling.
does

not

tolling

show
by

extraordinary

simply

continuing

underlying grounds for relief.

A habeas petitioner

circumstances
to

argue

entitling

the

merits

him
of

to
his

Finally, the court again rejects

petitioner’s attempt to characterize this as newly discovered
evidence as he alleges no facts to refute the state district
5

court’s finding, cited by this court in its prior order, that he
was aware of his claims regarding McNeary’s testimony at the
time of her trial testimony.
As petitioner was informed in the court’s prior order, a
habeas petitioner seeking equitable tolling must clear a high
hurdle and “is ‘entitled to equitable tolling’ only if he shows
(1) that he has been pursuing his rights diligently, and (2)
that

some

extraordinary

circumstance

prevented timely filing.”

stood

in

his

way

and

Holland v. Florida, ___U.S.___, 130

S.Ct. 2549, 2562 177 L.Ed.2d 130 (June 14, 2010).

Petitioner

was also informed that his allegations in his petition regarding
timeliness were nothing more than the restatement of some of his
claims

interspersed

with

bald

allegations

insufficient to make these showings.
provided

no

relevant

time

prevented

facts

him

establishing

period
from

or
timely

were

clearly

Petitioner’s response has

either

diligence

extraordinary
filing

that

his

during

circumstances
federal

the
that

petition.

Accordingly, the court concludes that this action is time-barred
and must be dismissed.
IT IS THEREFORE BY THE COURT ORDERED that this action is
dismissed as time-barred and all relief is denied.
IT

IS

FURTHER

ORDERED

that

to

the

extent

response (Doc. 3) is a motion, it is denied as moot.
IT IS SO ORDERED.
6

petitioner’s

Dated this 6th day of March, 2013, at Topeka, Kansas.

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

7