Jones (ID 69723) v. Heimgartner et al

Filing 21

MEMORANDUM AND ORDER ENTERED: A certificate of appealability is denied. Petitioner's motion 20 for stay and abeyance is denied. Respondents' motion 18 to dismiss this action as time-barred is sustained. This habeas corpus petition is dismissed with prejudice as not timely filed. Signed by Senior District Judge Sam A. Crow on 08/19/14. 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.
MEMORANDUM AND ORDER
The court previously screened this federal habeas corpus
petition, tentatively found facts indicating it is untimely, and
ordered Mr. Jones to show cause why this action should not be
dismissed as time-barred.

Mr. Jones filed a Response (Doc. 8)

in which he argued that this petition should not be dismissed as
time-barred because it is an amendment to his prior petition
that is entitled to a file date of March 28, 2003, pursuant to
the prison mailbox rule.

He also argued that he is entitled to

equitable tolling because he diligently pursued his claims and
reargued

that

he

is

entitled

to

miscarriage of justice exceptions.

the

actual

innocence

and

The court issued a limited

show cause order to respondents, who filed a Response to Order
(Doc.

16)

Respondents

contending

that

also

a

filed

exhaust state remedies.

the

Motion

petition
to

Dismiss

is
for

time-barred.
failure

to

Petitioner responded to both and filed

1

a Motion for Stay and Abeyance.

Having considered all materials

filed, the court dismisses this action as time-barred.1

FACTUAL BACKGROUND
In 2000, Mr. Jones was convicted upon trial by jury of
First Degree Premeditated Murder and sentenced to “Life without
parole for 25 years.”2

His conviction was affirmed on direct

appeal and his petition for writ of certiorari was denied by the
United States Supreme Court on October 21, 2002.
On July 9, 2004, Mr. Jones filed his first state postconviction motion pursuant to K.S.A. 60-1507.
denied

as

untimely,

the

denial

was

reversed

The motion was
on

appeal,

and

1

The court acknowledges that this is petitioner’s first federal habeas
petition, and “[d]ismissal of a first federal habeas petition is a
particularly serious matter.” Case v. Hatch, 731 F.3d 1015, 1036 (10th Cir.
2013)(alteration in original)(quoting House v. Bell, 547 U.S. 518, 539
(2006))(internal quotation marks omitted).
2

On direct appeal, the KSC “outlined the overwhelming evidence in this

case:”
Four eyewitnesses consistently described the events leading to
Trzok's death. Three of those witnesses were able to identify
Jones. Consistent with the four eyewitnesses, Jones' companion
that night, Tensley, testified he and Jones beat and dragged
Trzok out of the house. Importantly, the DNA evidence established
that Trzok's blood was on Jones' shoe. Last, while the statements
of Jones' aunt established motive, the State had already
established
motive
through
Tensley's
testimony.
Tensley
established that he and Jones stopped at Fields' house because
the car belonging to the person who had robbed Jones was parked
there.
Jones v. State, 321 P.3d 799, 2014 WL 136327 (Kan.App. Apr. 4,
2014)(hereinafter “Jones IV”)(quoting State v. Jones, 273 Kan. 756, 757-58,
47 P.3d 783 (Kan. 2002))(hereinafter “Jones I”). “The victim was shot three
times in the back of the head causing his immediate death.” Jones I, at 758.

2

counsel

was

appointed.3

The

district

court

then

held

evidentiary hearing and denied the petition on the merits.
Jones

appealed

affirmed

on

(Kan.App.

to

the

Kansas

Court

of

Appeals

March

27,

2009.

Jones

v.

State,

203

The

Kansas

2009)(hereinafter

“Jones

II”).

(KCA),

an
Mr.

which

P.3d

739

Supreme

Court (KSC) denied review on January 7, 2010.
In June 2009 while petitioner’s prior collateral appeal was
pending, Mr. Jones filed a Motion to Correct Illegal Sentence
pursuant to K.S.A. § 22-3504(1).
denied relief.

The

Petitioner appealed to the KSC, which according

to him “conducted a de novo review.”
12,
3

2011.

trial court summarily

State

v.

Jones,

The KSC affirmed on August

257

P.3d

268,

269

(Kan.

Upon ordering reversal, the KCA found as follows:
On June 29, 2004, Jones filed a request with prison officials to
approve the mailing of a 60-1507 motion.
This request was
approved by a unit team supervisor on June 30, 2004, and by
accounting on July 1, 2004.
The 60-1507 motion was actually
file-stamped by the Wyandotte County District Court on July 9,
2004.

The district court applied the state statute of limitations literally and
ruled that the 60-1507 petition was filed 20 months late. However, the KCA
held that since the limitations statute applicable to 60-1507 motions became
effective July 1, 2003, and Jones’ claims were preexisting, the limitations
period began running on the date of the statute’s enactment. Thus Jones had
until July 1, 2004, to file his 60-1507 motion. The KCA also held that the
mailbox rule could apply so that the motion could be deemed filed when Jones
delivered it to prison officials rather than when it was file-stamped by the
clerk of the court on July 9, 2004. The KCA knew Jones had requested postage
on June 29, 2004, but was “uncertain when Jones actually delivered his 601507 motion to prison officials.” They remanded “for a determination of the
date upon which the motion was delivered to prison authorities” with
directions to “proceed to the merits of the motion” if “that date was on or
before July 1, 2004.”
However, upon remand, the district court did not
consider the timeliness of the motion and instead proceeded to a hearing on
the merits.
Jones v. State, 120 P.3d 381, *2, 2005 WL 2416069 (Kan.App. Sept. 30, 2005).

3

2011)(hereinafter “Jones III”).

Petitioner filed a petition for

writ

U.S.

of

certiorari,

which

the

Supreme

Court

denied

on

January 17, 2012.
On

February

24,

2012,

Mr.

Jones

executed

this

52-page

petition containing 17 claims with over 50 pages of attached
exhibits.
Unbeknownst to this court, on November 1, 2012, Mr. Jones
filed another motion pursuant to K.S.A. 60-1507, which the state
appellate court recently described as “his fourth attack on his
conviction.”

Jones IV, 321 P.3d at 799, *1.

Upon screening the instant petition, this court found that
petitioner’s conviction became “final” on October 21, 2002; that
the

statutory

one-year

limitations

period

commenced

the

following day; and that the time ran unimpeded until it expired
on or about October 22, 2003.
tolling-type

motion

until

Thus, Mr. Jones did not file a
8½

months

after

the

federal

limitations period expired.
Petitioner filed a Response (Doc. 8), two supplements, and
two

motions.

respondents

The

limited

court
to

the

entered
question

a
of

show

cause

whether

petition should be dismissed as time-barred.

or

order
not

to
this

Respondents filed

a Response to Order (Doc. 16) arguing that the instant petition
is time-barred, to which petitioner filed a reply (Doc. 17).
Respondents later filed a Motion to Dismiss (Doc. 18) as time4

barred or for failure to exhaust, having discovered Mr. Jones’
collateral appeal currently pending in state court.4

In response

to the Motion to Dismiss, Mr. Jones filed a Response (Doc. 19)
and a Motion for Stay and Abeyance (Doc. 20).

DISCUSSION
Mr.

Jones

argued

in

his

federal

petition

that

its

untimeliness should be excused because on March 28, 2003, he
“filed a 2254 petition and motion to stay & abeyance to exhaust
state remedies” in this court that was never decided, and that
the instant petition is an amendment that relates back to his
2003 petition.

The court found that these allegations were not

adequately substantiated and were refuted by its own records
containing no evidence of any filing in federal court by Mr.
Jones in 2003 or any year prior to 2012.

In addition, the court

noted that a premature federal petition filed in 2003 would have
had no tolling effect upon the statute of limitations.

The

court

his

rejected

petitioner’s

amendment

argument

and

assertions of actual innocence and fundamental miscarriage of
justice.

The standards for equitable tolling were set forth,

and Mr. Jones was given the opportunity to allege additional
facts establishing his entitlement to equitable tolling or to
4

The court takes judicial notice of state court records showing that the
KCA has since issued an opinion affirming denial of post-conviction relief to
Mr. Jones, and that petitioner filed a Petition for Review in the KSC on May
2, 2014, that is pending. See Jones IV.

5

show cause why this action should not be dismissed as timebarred.
A.

Timeliness

In response to the court’s show cause order, petitioner
again argued that the untimeliness of the instant petition must
be excused because he filed a petition and motion to stay in
2003 that are still pending.

He invoked the prison mailbox rule

and argued that the court must deem the file date of these
pleadings as in 2003.

In support, he provided the following

allegations and exhibits.
federal

2254

petition

On March 28, 2003, he “handed his

and

Motion

to

Stay

to

exhaust

state

remedies” addressed to this court to a correctional officer at
the Hutchinson Correctional Facility (HCF) for deposit in the
prison’s mailing system.

He then concentrated on exhausting his

state

He

court

remedies.

attached

to

the

instant

federal

petition a copy of a two-page handwritten 2254 petition (Exh.
J1), and a one-page handwritten “Motion to Stay and Abeyance”
(Exh. J2).

In his 2003 petition he set forth 7 claims regarding

his waiver hearing.

In his Stay Motion, he stated that he

“need(ed) to exhaust 6 claims first in state court” because
“direct appeal counsel was ineffective for failure to raise the
claims on direct appeal.”

Both pleadings contain the following

certification:
I Charles L. Jones # 69723 certify in compliance with
6

28 U.S.C. § 1746 I Charles L. Jones hereby declare
true under penalty of perjury that the forgoing (2254
petition/ Motion to Stay) is true and correct and was
handed to the HCF prison correctional official
officer, prepaid first class postage on March 28, 2003
to be deposit (sic) in the prison mailing system in A
Cellhouse for mailing to the Kansas federal district
Court 444 SE Quincy, Topeka KS. 66683.
Executed on
March 28, 2003.
Id.

Petitioner also attached to his federal petition a Form 9

“Inmate Request to Staff Member” (Doc. 1-1, Exh. G), on which he
wrote the date March 28, 2003, and the following request:
Pleas confirm that I handed my 2254 legal mail
petition prepaid first class postage to the H.C.F.
correctional officer to put in the A Cellhouse mailbox
to be mailed to the court on 3-28-2003.
The top half-portion of the form is signed by Mr. Jones and
James

B.

Haydon

as

the

“Detail

or

C.H.

Officer.”

The

“disposition” portion on the bottom half contains nothing other
than the word “Yes” in handwriting that appears different from
Haydon’s signature.

The lines for the date of disposition and

employee signature are blank, so that no date is indicated other
than that written by Mr. Jones.

Petitioner also exhibited the

Affidavit of CSI James Haydon dated February 22, 2012 (Doc. 1-1,
Exh.

K).

In

this

affidavit,

Haydon

averred

that

he

was

a

correctional officer (CO) at the HCF on approximately March 28,
2003, and recalls that in administrative segregation (ad seg)
where Jones was housed,
it was the Correctional facility policy for Jones to
hand the correctional officer his 2254 legal mail
7

petition to be placed in the prison mailing mailbox
system for mailing to the courts.
He further averred that inmates in ad seg did not have direct
access to the mail system and had to rely on a correctional
officer to take their mail to the mailbox.

He concluded, “so

approximately on March 28th 2003 to the best of my knowledge”
while Jones was housed in ad seg “he did comply with the prison
mailing

system

policy

rules.”

After

the

court

issued

its

screening order, petitioner attached another affidavit from CO
Haydon (Doc. 8-1, Exh. A) dated April 30, 2012, in which affiant
verifies that the form 9 request “is what inmates use to verify
that they requested information” from KDOC and that petitioner’s
exhibited form 9 “is accurate,” his “signature at the bottom of
the form 9 is also accurate,”5 and he “did sign said form 9 on
March 28, 2003.”
In

Id.

their Response to the court’s limited order to show

cause, respondents contend that the instant petition is timebarred

and

disagree

with

petitioner’s

entitled to a March 2003 file date.

argument

that

he

is

They assert that petitioner

has presented no evidence to support his claim that he mailed a
federal petition to this court in 2003, and that “the available
evidence casts serious doubt on such a claim.”
proffer the following.

In support, they

The two pleadings on which Mr. Jones

5

The exhibit of the form 9 shows that Haydon’s signature is not on the
bottom of the form and that the line for a signature at the bottom is blank.

8

relies were produced by him and are not authenticated as to date
or otherwise except by Mr. Jones.

Neither is notarized or file-

stamped “or otherwise affixed with any official indicia of the
date.”

Petitioner’s form 9 exhibit entitled “Inmate Request to

Staff Member” (Doc. 1-1, Exh. G) was likewise prepared and dated
by

Mr.

Jones

and

the

disposition

support its authenticity.”

portion

“bears

nothing

to

Haydon’s first affidavit is nothing

more than the officer’s statement that petitioner complied with
mail

policies

statement

that

while
Mr.

in

ad

Jones

seg
handed

in

March

his

two

2003

and

court

is

not

documents

a
to

Haydon for mailing on a particular date.
Respondents advised that they asked HCF staff to search
all their available records, but paper records from that timeframe had been destroyed per established policy.

They provided

an affidavit concerning computer records that track withdrawal
and purchase order requests by inmates for legal postage showing
none by petitioner on or about March 28, 2003, and only one in
2003 which was on February 23, and that Mr. Jones has used the
institutional

system

for

requesting

postage

for

legal

and

official mail “many, many times” both before and after this
date.

They asserted that there is “no record that Petitioner

mailed anything on March 28, 2003,” and no evidence that the
court received a federal habeas petition from Mr. Jones in 2003.
Finally,

respondents

noted

that
9

petitioner

“waited

over

nine

years after allegedly mailing his federal habeas petition to
follow up on it,” and argued that “it defies logic to believe
that he would not at least check on the status” of his petition
“to ensure that it arrived, that the proceedings were stayed as
he asked, and to obtain a case number.”
The court finds that Mr. Jones fails to establish that he
is entitled to invoke the “prison mailbox rule.”

This rule, “as

articulated by the Supreme Court in Houston v. Lack,” 487 U.S.
266,

276

(1988),

“holds

that

a

pro

se

prisoner’s

notice

of

appeal will be considered timely if given to prison officials
for mailing prior to the filing deadline, regardless of when the
court itself receives the documents.”

Price v. Philpot, 420

F.3d 1158, 1163-64 (10th Cir. 2005)(citing see also Fed.R.App.P.
4(c)(1))(incorporating mailbox rule for an inmate’s “notice of
appeal

in

either

a

civil

or

a

criminal

case”).

The

Tenth

Circuit “extended this mailbox rule beyond the notice of appeal
context

of

Houston”

and

has

“applied

it

.

.

.

to

a

state

prisoner’s filing of a habeas petition under 28 U.S.C. § 2254.”
Id. at 1164-65 (citing Marsh v. Soares, 223 F.3d 1217, 1218 &
n.1

(10th

Cir.

2000));

see

also

United

States

v.

Ceballos-

Martinez, 387 F.3d 1140, 1143-44 (10th Cir.), cert. denied, 543
U.S. 1005 (2004).
To claim the benefit of the prison mailbox rule, a prisoner
bears the burden of proving that the pleading in question was
10

filed timely.

Price, 420 F.3d at 1165.

There are only two ways

a prisoner may establish timely filing. Ceballos-Martinez, 387
F.3d at 1143.

First, “if the prison has a legal mail system,

then the prisoner must use it as the means of proving compliance
with the mailbox rule.”

Id. at 1144.

Second, when the inmate

does not have access to a legal mail system, the “mandatory
method by which a prisoner . . . proves compliance with the
mailbox rule” is to “submit a declaration [in compliance with 28
U.S.C. § 1746]6 or notarized statement setting forth the notice’s
date of deposit with prison officials and attest that firstclass postage was pre-paid.”

Id. at 1145; see also U.S. v.

Gray, 182 F.3d 762, 766 (10th Cir. 1999); United States v. Smith,
182

F.3d

mailbox

733,
rule

declaration

735
to

of

n.

pro

1
se

timely

(10th

Cir.

inmate’s

filing

did

1999)(refusing

notice
not

of

state

appeal
that

to

apply

because

first-class

postage had been prepaid).
While an inmate’s personal declaration may be sufficient to
invoke the prison mailbox rule when filing was delayed due to
circumstances beyond the inmate’s control; it is not sufficient
standing alone to establish that a pleading to initiate a case
that

never

mailing.

reached

the

court

was

in

fact

surrendered

for

When the alleged initial pleading never reached the

6

Compliance with 28 U.S.C. § 1746 requires a “declaration, certificate,
verification, or statement, in writing of such person which is subscribed by
him, as true under penalty of perjury, and dated.” 28 U.S.C. § 1746.

11

court, the petitioner must provide some substantiation beyond
his personal declaration.

Generally, when an inmate has handed

legal mail to a prison official for mailing to a court, agency
records are generated.

Mr. Jones has not attached a copy of a

prison log of outgoing mail, which might confirm that his legal
mail was surrendered for mailing on a certain date.

Respondents

cannot be faulted for failing to provide the log because Mr.
Jones waited for over 8 years to assert the mailbox rule, and
the prison records were destroyed after 5 years.

Mr. Jones does

not present any prison document substantiating that he delivered
pleadings for mailing to this court on March 28, 2003.
9 exhibit is inconclusive, at best.
Fed.Appx. 401, 403 (10th Cir. 2010).

His form

See Hatch v. C.I.R., 364
It is not a statement by CO

Haydon that he received a federal habeas petition and motion to
stay from Mr. Jones on March 28, 2003.

In reply to respondent’s

arguments, Mr. Jones makes the new allegation that on March 28,
2003, he handed “a 60-1507 motion addressed to the juvenile
court” to HCF correctional officer along with his 2254 petition
and stay motion addressed to the federal court.7

He also alleges

that the KDOC does not have an adequate legal mailing system
7

This statement seems contrary to the record cited earlier indicating
that Mr. Jones first 60-1507 motion was surrendered for mailing over a year
later.
As noted, when the KCA reversed the trial court for dismissing his
60-1507 motion as untimely, it found that the motion was submitted for filing
between June 29, 2004, and July 9, 2004.
If petitioner is now suggesting that he filed an earlier 60-1507 motion
that disappeared along with his 2003 federal pleadings, this statement is
completely unsubstantiated.

12

that keeps track of all legal mail sent to courts and that his
exhibited Form 9 entitled “Inmate Request to Staff Member” was
the only means available in ad seg to record his surrender of
legal mail to HCF prison officials.

He refers to the latest

affidavit of CO Hayden (Doc. 8-1, Exh. A), and argues that it
verifies that he “handed his 2254 petition to the correctional
officer to be mailed to the court on March 28, 2003.”8
The court agrees with respondents that nothing about the
hand-written habeas petition and stay motion exhibited by Mr.
Jones

establishes

that

these

papers

were

created,

signed,

submitted for mailing, actually mailed, or filed in March 2003.
Furthermore, federal court records are reliable proof that this
petition and motion were
court

in

2003.

neither received nor filed in this

Petitioner

is

indigent

and

alleges

that

he

purchased the stamps at the commissary but presents no proof,
such as commissary records, that he purchased either stamps or
an envelope for this mailing.

On the other hand, his allegation

that he obviously needed only two stamps for the mailing of
three pages is reasonable.
the

very

correctional

Petitioner obtained affidavits from

officer

that

purportedly

received

his

legal papers for mailing, but these statements are generic and
provide

no

proof

whatsoever

that

8

Mr.

Jones

Petitioner’s own statement in his exhibited
Member” is vague in that it does not specify a 2254
stay to be mailed to federal court and a 60-1507
state court, but refers only to “my 2254 legal mail”

13

handed

a

2254

“Inmate Request to Staff
petition and a motion for
petition to be mailed to
and “the court.”

petition and stay motion to Haydon on March 28, 2003.
that

his

exhibited

particular

papers

form
for

9

proves

mailing

to

that

he

Haydon

He claims

submitted
and

that

confirmed receipt of the papers by signing the form 9.

these
Haydon

However,

as he himself later alleges (Doc. 17, pg. 2), the signature of
the officer receiving the form 9 acknowledges receipt of the
inmate request only.

The form 9 does not show that Haydon wrote

the “yes” on it or the significance of the “yes.”

Haydon’s 2012

affidavit indicates that a form 9 request “is what inmates use
to verify that they requested information” from prison officials
and that Haydon signed the form 9 Inmate Request to Staff Member
submitted by Mr. Jones on March 28, 2003, to verify that Jones
requested

such

information.

This

does

not

amount

to

confirmation either that Mr. Jones handed his “2254 legal mail .
. . to the H.C.F. correctional officer” or that petitioner’s
legal mail was received by Haydon.
In

addition,

when

a

case

is

received

for

federal court, records are routinely generated.

filing

by

a

Mr. Jones does

not allege or show that he received a case number from the court
or any acknowledgment that his 2003 pleadings were filed.
does

he

present

evidence

that

he

paid

the

filing

fee

Nor
or

submitted a motion to proceed in forma pauperis, or that he
received an order from the court requiring that he satisfy the
statutory fee prerequisite.

Since the filings were not received
14

by this court through the mail, there is no envelope with either
a date-received stamp or a postmark.
Finally, the court notes that petitioner’s case lacks the
principal proof that is inherent in most, if not all, prison
mailbox

cases,

which

is

the

publicly-recorded

fact

that

the

pleadings in question were eventually received by the court and
filed.

The mailbox rule is concerned with a delay in filing a

pleading and logically presumes a date of receipt by the court.
See Houston, 487 U.S. at 275 (“Because reference to prion mail
logs will generally be a straightforward inquiry, making filing
turn on the date the pro se prisoner delivers the notice to
prison authorities for mailing is a bright-line rule, not an
uncertain one,” while “[r]elying on the date of receipt, by
contrast, raises difficult to resolve questions . . . .”).

This

case is distinguishable because the petition and motion which
Mr. Jones claims he handed to a prison official for mailing in
2003 were not merely delayed but were never received and filestamped by this court.

See Houston, 487 U.S. 276 ([A]ny delays

might instead be attributable to the prison authorities’ failure
to forward the notice (of appeal) promptly.”).
the

mailbox

rule

is

to

establish

that

a

The purpose of

pleading

actually

received and file-stamped by a court should be deemed filed on
an earlier date, usually a matter of days, when it was delivered
to a prison official for mailing.
15

Petitioner may not so easily

invoke

an

earlier

file

date

on

a

pleading

that

was

never

actually filed.

Another factor that generally underlies the

mailbox

missing

rule

is

from

this

case

because

the

court

document allegedly submitted for mailing by Mr. Jones was a
petition

for

writ

of

habeas

against prison officials.

corpus

and

not

a

civil

action

Thus, this case lacks the suggestion

of incentive on the part of Officer Haydon to impede its filing.
Petitioner’s actions since his alleged filing of a federal
petition

and

motion

in

pleadings were not filed.

2003

also

indicate

that

his

2003

The court agrees with respondents

that petitioner’s failure to inquire for over 8 years as to a
federal petition he claims to have filed, particularly in light
of his failure to receive any type of acknowledgement from the
court,

weighs

mailbox rule.

heavily

against

application

of

the

equitable

See Stoot v. Cain, 570 F.3d 669, 672 (5th Cir.

2009)(“A failure to inquire about a lost petition is strong
evidence that the petition was, in fact, never sent.”); cf. id.
at 672; Allen v. Culliver, 471 F.3d 1196 (11th Cir. 2006); Huizar
v.

Carey,

273

F.3d

1220,

1223

(9th

Cir.

2001)(Principles

of

Houston v. Lack apply to pro se prisoner pleadings that never
reached the intended recipient “so long as he diligently follows
up once he has failed to receive a disposition from the court
within

a

reasonable

time.”).

Because

petitioner

failed

to

inquire about his federal petition or motion for several years,
16

he did not ascertain that they were not received and he could
not

alert

motion.
court

this

court

to

an

unacknowledged

2003

petition

or

A reasonably diligent litigant would have advised the

years

earlier

that

he

had

submitted

a

new

case

whose

receipt had not been acknowledged and in which no order had been
entered.

Petitioner’s inaction prevented any timely corrective

action.

Petitioner tries to explain his failure to inquire by

alleging that he was busy

exhausting

claims in state court.

However, he does not explain his compunction to file a premature
federal

petition

before

he

had

fully

exhausted

state

court

remedies and yet total lack thereof to inquire as to its status
after its receipt was not acknowledged and no action was taken
on the matter for 8 to 9 years.
Finally, the court repeats for emphasis that even if Mr.
Jones had actually filed a federal habeas corpus petition in
2003,

the

statute

of

pendency

of

a

limitations.9

federal
It

petition

follows

does

that

not

the

toll

statute

the
of

limitations applicable to petitioner’s case would still have run
and expired on October 22, 2003.
The court concludes that petitioner has not met his burden
of proving that he surrendered his exhibited federal 2254 habeas
petition and motion to stay to prison officials on March 28,
2003, for mailing to this court, and that he is not entitled to
9

It is settled law that only
action has such a tolling effect.

a

17

properly-filed

state

post-conviction

invoke the prison mailbox rule to establish the claimed filedate and pendency of these pleadings.

Because petitioner has no

prior petition pending before this court, the instant petition
does

not

relate

limitations

back

period.

and

was

filed

Accordingly,

outside

the

court

the

one-year

dismisses

this

federal petition as time-barred.
B.

Equitable Tolling

The court further finds for similar reasons that Mr. Jones
has not established that he is entitled to equitable tolling.
As Mr. Jones was informed,

“the timeliness provision in the

federal habeas corpus statute is subject to equitable tolling,”
Holland v. Florida, 560 U.S. 2554 (2010).

However, a petitioner

is entitled to equitable tolling only if he demonstrates “(1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented
timely filing.”

Id. at 2562 (internal quotation marks omitted);

Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003)(citing
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)); Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000); see also Clark v.
Oklahoma,

468

F.3d

711,

714

(10th

Cir.

2006).

“Equitable

tolling is appropriate, for example, when a prisoner is actually
innocent, when an adversary’s conduct-or

other uncontrollable

circumstances-prevents a prisoner from timely filing, or when a
prisoner

actively

pursues

judicial
18

remedies

but

files

a

defective pleading during the statutory period.”
F.3d at 808.

Gibson, 232

The burden is on a petitioner to demonstrate the

circumstances

that

justify

equitable

tolling.

Yang

v.

Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (“‘[A]n inmate
bears a strong burden to show specific facts to support his
claim

of

extraordinary

circumstances

and

due

diligence.’”)(citation omitted); see also Miller v. Marr, 141
F.3d 976, 977 (10th Cir. 1998).
Mr. Jones has not shown diligence in pursuing his rights as
he

claims.

He

has

not

explained

why

he

failed

to

file

a

tolling-type state post-conviction motion prior to late June or
early July 2004, or why he would attempt to file a premature
federal habeas corpus petition instead.

Nor has he adequately

explained why he failed to inquire for over 8 years as to a
federal petition and motion he claims to have filed.
does

not

allege

circumstances

beyond

his

control

He clearly
that

would

justify equitable tolling of the one-year limitation period.
Mr.

Jones

also

fails

to

indicating his actual innocence.

allege

any

additional

facts

As he was previously informed,

in order to qualify for the “actual innocence” exception, he
must provide evidence of a “fundamental miscarriage of justice,”
meaning that “a constitutional violation has probably resulted
in the conviction of one who is actually innocent.”
Carrier, 477 U.S. 478, 495–96 (1986).
19

Murray v.

That standard requires

petitioner to “support his allegations of constitutional error
with new reliable evidence-whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence-that was not presented at trial.”
U.S. 298, 324 (1995).
innocence.

Schlup v. Delo, 513

Mr. Jones provides no new evidence of his

His arguments that constitutional errors occurred

during his waiver hearing and trial are legal claims that his
conviction

should

be

overturned,

not

allegations

of

factual

innocence.

C.

Exhaustion

The court has considered respondents’ Motion to Dismiss in
which

they

petition

as

remedies.
court’s

argue

that

time-barred

court

or

should

for

either

failure

to

dismiss
exhaust

this
state

In support of the latter argument, they called the
attention

to

appeal in Jones IV.
pending

the

in

the

petitioner’s

pending

state

collateral

Petitioner argues that “the issues he has

state

court

are

not

petition” and “are totally different.”

included

in

his

federal

He also notes his filing

of a motion for stay and abeyance in this action.
In Jones IV, the KCA summarized the numerous and varied
issues

raised

challenges.

by

Mr.

Jones

Id. at *1-*2.

Jones raises 17 claims.

throughout

his

state

court

In his instant federal petition, Mr.

Thirteen of those challenge the waiver
20

proceedings pursuant to which it was determined that he would be
tried as an adult.

Mr. Jones challenged these proceedings and

his certification as an adult on many grounds on direct appeal
and in his first and second state post-conviction proceedings.
His other claims in his federal petition concern his detention
hearing and extradition from Iowa to Kansas, lack of notice to
his parents, and hearsay testimony at trial.

In Jones IV that

is currently pending review in the KSC, petitioner argued that
his trial counsel was ineffective and that he was incompetent at
the

time

of

trial

based

on

recent

Supreme

Court

recognizing that juvenile brains are underdeveloped.

cases

While he

has provided those citations to this court and filed additional
papers mentioning these issues, these claims are not listed in
his federal habeas corpus petition.
finds

that

this

petition

is

In any event, the court

time-barred.

For

that

reason,

respondents’ Motion to Dismiss for failure to exhaust is denied
as moot.

MOTION FOR STAY AND ABEYANCE
The court has considered petitioner’s motion for stay and
abeyance of the instant action (Doc. 20) and denies the motion.
A habeas petitioner may seek a stay in order to exhaust claims
raised in his original petition or that will relate back to that
petition.

In order to be entitled to a stay he is required to
21

allege

facts

showing

(1)

that

“good

cause”

exists

for

his

failure to exhaust the unexhausted claims, and (2) that the
unexhausted

claims

are

habeas corpus review.
(2005).

Whether

“potentially

meritorious”

on

federal

Rhines v. Weber, 544 U.S. 269, 277–78

petitioner

seeks

a

stay

to

exhaust

claims

already raised in the instant petition or new claims, he does
not show good cause for his failure to have fully exhausted
these claims prior to filing this action.
argues the merits of his claims.

Instead, he mainly

More importantly, he cannot

show that any unexhausted claims will be timely given that the
instant petition is untimely.

This motion may also be denied as

moot.

CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, instructs that “[t]he district
court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”
U.S.C.

§

2253,

appealability

the

“only

if

court
the

may

issue

applicant

a

has

Pursuant to 28
certificate

made

a

of

substantial

showing of the denial of a constitutional right,” and the court
“indicates

which

showing.”

A

demonstrating

specific
petitioner

that

the

issue
can

issues
22

or

issues

satisfy
raised

satisfy

that
are

[that]

standard

debatable

by

among

jurists, that a court could resolve the issues differently, or
that

the

questions

deserve

further

proceedings.

Slack

v.

McDaniel, 529 U.S. 473 (2000)(citing Barefoot v. Estelle, 463
U.S. 880, 893 (1983)). In addition, when the court’s ruling is
based on procedural grounds, a petitioner must demonstrate that
“jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
that

jurists

of

reason

would

find

it

debatable

whether

district court was correct in its procedural ruling.”
529

U.S.

at

484.

The

court

finds

that

appealability should not issue in this case.
that

the

court’s

ruling

resulting

in

the

a

the

Slack,

certificate

of

Nothing suggests
dismissal

action as time barred is debatable or incorrect.

of

this

The record is

devoid of any authority suggesting that the Tenth Circuit Court
of Appeals would resolve the issues in this case differently.

A

certificate of appealability shall be denied.
IT IS THEREFORE ORDERED that a certificate of appealability
is denied.
IT IS FURTHER ORDERED that petitioner’s Motion for Stay and
Abeyance (Doc. 20) is denied.
IT IS FURTHER ORDERED that respondents’ Motion to Dismiss
(Doc. 18) this action as time-barred is sustained, and that this
habeas corpus petition is dismissed with prejudice as not timely
filed.
23

IT IS SO ORDERED.
Dated this 19th day of August, 2014, at Topeka, Kansas.

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

24