Jones (ID 69723) v. Heimgartner et al

Filing 13

ORDER ENTERED: Respondents are required to submit within thirty (30) days of this order a preliminary response to the petition 1 and petitioner's response 8 filed herein. Such response shall be limited to the question of whether or not thi s petition should be dismissed as time-barred. Petitioner is granted twenty (20) days after receipt by him of a copy of the respondents' preliminary response to file a reply thereto. Petitioner's request 8 for hearing, motion 8 to ame nd petition and to add claims and factual allegations, motion 11 to move case forward, and motion 12 for release on bond are denied without prejudice. Signed by Senior District Judge Sam A. Crow on 9/25/2012. (Mailed to pro se party Charles L. Jones by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHARLES L. JONES,
Petitioner,
v.

CASE NO.

12-3055-SAC

JAMES HEIMGARTNER,
et al.,
Respondents.
O R D E R
On April 20, 2012, this court screened this federal habeas
corpus petition filed pursuant to 28 U.S.C. § 2254, and ordered
petitioner to show cause why this action should not be dismissed
as time-barred.

Petitioner has filed a Response (Doc. 8) in

which he argues that his petition should not be dismissed as
untimely because he is entitled under the prisoner mailbox rule
to a file date on the instant petition of March 28, 2003, and he
is entitled to equitable tolling.1

He also claims that he is

entitled to equitable tolling because he has been diligent in
pursuing his claims, circumstances beyond his control prevented
his petition from being timely filed, he is actually innocent,
and it would be a miscarriage of justice not to consider the

1

The burden is on a petitioner to demonstrate the circumstances that
justify equitable tolling.
Miller v. Marr, 141 F.3d 976, 977 (10th Cir.
1998).
1
2
The burden is on a petitioner to demonstrate the
Mr. Jones stated in the instant petition (Doc. 1) at circumstances filed
46, that he that
justify equitable motion
Marr, OtherF.3d 976, indicate it Cir.
141
his first 60-1507 tolling.on Miller9,v.2004.
July
records 977 (10th was
1998).
initially dismissed by the state district court as “filed a day or so late”

1

merits of his claims.
In support of his claim to benefit of the prisoner mailbox
rule,

petitioner

has

provided

an

exhibit

of

a

handwritten

“Petition 28 U.S.C. § 2254,” which he alleges he placed in the
hands of correctional officer James Haydon at the Hutchinson
Correctional Facility on March 28, 2003, for mailing to this
court.

Petition (Doc. 1) Exh. J.

This exhibit includes a

certification that “the foregoing 2254 petition . . . was handed
to the HCF prison correctional official officer, prepaid first
class postage on March 28th 2003 to be deposit in the prison
mailing system in A cellhouse for mailing to the Kansas federal
district

court.”

He

has

also

submitted

an

affidavit

of

correctional officer Haydon dated February 22, 2012, generally
stating that the policy in A cell house on March 28, 2003, was
for Jones and other administrative segregation inmates to hand
2254 legal mail to the correctional officer and that to the best
of his knowledge Jones complied with the prison mailing system
policy rules.

Id. Exh. K.

He also exhibits a Form 9 “Inmate

Request to Staff Member” on which he has written the date of
March 28, 2003.
he

handed

postage

his

“to

In this request, he asked for confirmation that
2254

the

legal

HCF

mail

correctional

Cellhouse mailbox on 3-28-2003.”
“Disposition,”

but

petition

there

is

no
2

prepaid

officer

to

first

put

in

class
the

A

“Yes” has been written after
date

or

signature

on

the

disposition.
If Mr. Jones fails to meet his burden of establishing his
entitlement to a 2003, rather than a 2012, file date under the
prisoner
filed

mailbox

within

because

his

the

rule,

the

one-year

conviction

instant
statute

became

federal
of

petition

“final”

on

the

day

not

This

limitations.

was

is

the

U.S.

Supreme Court denied his first petition for writ of certiorari,
which was October 21, 2002; and the statute of limitations began
to run the next day on October 22, 2002.
a tolling-type motion until 2004.2

Mr. Jones did not file

It follows that the federal

statute of limitations expired on October 22, 2003, unless he
can establish that he is entitled to equitable tolling.
The court requires respondents to file a partial response
limited to the threshold question of whether or not this action
should be dismissed as time-barred.
The

full

title

of

petitioner’s

Response

is

“Motion

in

Response to Show Cause Order and Amended Petition to Add Pate
2

Mr. Jones stated in the instant petition (Doc. 1) at 46, that he filed
his first 60-1507 motion on July 9, 2004.
Other records indicate it was
initially dismissed by the state district court as “filed a day or so late”
and that the dismissal was overturned on appeal. In his response, Mr. Jones
now claims that he also handed a 60-1507 petition to prison officials on
March 28, 2003, along with his 2254 federal petition.
However, no such
petition with a proper certification or any other supporting evidence is
provided.
In contrast with this new assertion, on appeal of his first 601507 petitioner argued that his 60-1507 petition had been delivered to prison
officials for filing on June 30, 2004, not March 28, 2003; and the Kansas
Court of Appeals found that his request for postage was submitted to prison
officials on June 29, 2004.
Jones v. State, 120 P.3d 381, *3, 2005 WL
2416069 (Kan.App. Sept. 30, 2005).
Thus, the court tentatively finds that
Mr. Jones filed his first 60-1507 motion on June 29, 2004, rather than July
9, 2004.

3

Claim and Substantive Claim of Competency” (Doc. 8).

The court

denies the portion of this pleading that purports to be a Motion
to Amend Petition for several reasons.

First, in order to add

claims or significant new facts to his

habeas

petition, Mr.

Jones must file a separate Motion to Amend Petition and attach a
complete Amended Petition to that motion.
that

an

Amended

petition.

Petition

completely

Petitioner is warned

supersedes

the

original

It follows that any content in the original petition

that is not included in the Amended Petition is no longer before
the court.

Second, an Amended Petition must be submitted upon

court-provided forms, and petitioner must write the number of
this case upon its first page.
Finally, petitioner is reminded and strongly cautioned that
he may not raise claims in federal court that have not been
fully

and

properly

exhausted

in

the

state

courts.

The

six

claims listed in his exhibit of a 2003 petition do not include a
claim of incompetency.

Nor is it apparent that he raised any

claim of incompetency in state court on direct appeal or in his
state post-conviction motions.

Petitioner may not raise this

claim either as a challenge to his conviction or as grounds for
equitable tolling unless and until he has fully exhausted it in
the state courts.

In addition, Mr. Jones’ claim of incompetency

is not even raised in his current federal petition.

If it is

eventually raised in an Amended Petition and is not shown to be
4

fully

exhausted,

“mixed.”

the

Amended

Petition

may

be

dismissed

as

Petitioner is also warned that amendments to federal

habeas petitions generally do not “relate back” to an earlier
petition unless they involve the same claims or arise from the
same facts that were presented in the earlier petition.
In addition to his Response, petitioner has submitted two
letters to the court which were liberally construed and docketed
as Supplements (Doc. 9 & 10).3
court’s

attention

Supreme

Court,

to

which

recent
he

In each letter, he calls the
opinions

the

United

support

believes

of

States

his

“incompetency”

claim.
Petitioner has also filed a “Motion Concerning the 90 Day
Continues”

(Doc.

11),

which

mainly

asks

the

court

“to

move

forward.”

This motion is denied because the relief requested is

not

and

clear

authority.

is

not

supported

by

sufficient

facts

or

any

At this juncture, the court is still attempting to

determine whether this matter may proceed further or if it must
be dismissed as time-barred.
Petitioner has filed a “Motion for Release on Bond” (Doc.
12).

Having considered this motion, the court finds it should

be denied.

This motion is again based mainly upon petitioner’s

3

Petitioner is advised that it is inappropriate to write directly to the
judge in his case. Any motion requesting court action or other pleading must
be presented in proper form (see Fed.R.Civ.P. Rule 7), not simply in a
letter, and must be sent to the office of the clerk for filing in the case.

5

claim that he was “tried and convicted while being incompetent,”
which as noted is not even raised in the current petition.

With

respect to his other claims, Mr. Jones stands convicted after a
trial,

direct

appeal,

and

collateral

appeals.

He

is

not

entitled to release on bail pending disposition of a federal
habeas petition based simply upon arguments as to the merits of
his habeas claims.

As previously discussed, the court has not

yet determined that these claims are properly before it at this
time.

Nor do petitioner’s allegations of fact in this motion

amount to extraordinary circumstances.
Petitioner includes another “Request for Hearing” in his
Response (Doc. 8).

As the court already informed Mr. Jones, it

will

hearing

decide

if

a

is

needed

based

upon

the

record

presented.

This motion is denied without prejudice at this

time.

Jones

progress

Mr.
of

this

is

advised

matter

by

that

filing

he

does

not

unnecessary

advance

or

the

repetitive

motions.
IT IS THEREFORE BY THE COURT ORDERED that:
1.

Respondents are hereby required to submit within thirty

(30) days of this Order a Preliminary Response to the Petition
(Doc. 1) and Petitioner’s Response (Doc. 8) filed herein, and
that such response shall be limited to the question of whether
or not this petition should be dismissed as time-barred.
2.

The response should present:
6

(a)
any arguments and evidence such as exhibits or
affidavits regarding petitioner’s claim that he is
entitled to a March 28, 2003 file date of this
petition under the prisoner mailbox rule, including
but not limited to information as to the system for
mailing legal documents at Hutchinson Correctional
Facility, logs of legal mail, withdrawal of funds for
postage, and relevant administrative requests and
dispositions by petitioner at the relevant times and
to his claim that he is entitled to equitable tolling.
3.

The

petitioner

is

granted

twenty

(20)

days

after

receipt by him of a copy of the respondents= Preliminary Response
to file a Reply thereto.
4.

The clerk of this court then return this file to the

undersigned judge for such other and further proceedings as may
be appropriate; and that the clerk of this court transmit copies
of this order to petitioner and to the office of the Attorney
General for the State of Kansas.
IT IS FURTHER ORDERED that petitioner’s Request for Hearing
(Doc. 8), Motion to amend petition to add claims and factual
allegations (Doc. 8), Motion to Move Case Forward (Doc. 11), and
Motion

for

Release

on

Bond

(Doc.

12)

are

denied,

without

prejudice.
The clerk is directed to send petitioner 2254 forms.
IT IS SO ORDERED.
Dated this 25th day of September, 2012, at Topeka, Kansas.

7

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

8