Jones (ID 69723) v. Heimgartner et al
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,
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
miscarriage of justice exceptions.
The court issued a limited
show cause order to respondents, who filed a Response to Order
exhaust state remedies.
Petitioner responded to both and filed
a Motion for Stay and Abeyance.
Having considered all materials
filed, the court dismisses this action as time-barred.1
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.
The motion was
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).
On direct appeal, the KSC “outlined the overwhelming evidence in this
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 that he and Jones stopped at Fields' house because
the car belonging to the person who had robbed Jones was parked
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.
evidentiary hearing and denied the petition on the merits.
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).
Petitioner appealed to the KSC, which according
to him “conducted a de novo review.”
trial court summarily
The KSC affirmed on August
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,
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
Jones v. State, 120 P.3d 381, *2, 2005 WL 2416069 (Kan.App. Sept. 30, 2005).
2011)(hereinafter “Jones III”).
Petitioner filed a petition for
January 17, 2012.
petition containing 17 claims with over 50 pages of attached
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
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
following day; and that the time ran unimpeded until it expired
on or about October 22, 2003.
Thus, Mr. Jones did not file a
limitations period expired.
Petitioner filed a Response (Doc. 8), two supplements, and
petition should be dismissed as time-barred.
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
to the Motion to Dismiss, Mr. Jones filed a Response (Doc. 19)
and a Motion for Stay and Abeyance (Doc. 20).
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
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.
assertions of actual innocence and fundamental miscarriage of
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
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.
show cause why this action should not be dismissed as timebarred.
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.
On March 28, 2003, he “handed his
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
petition a copy of a two-page handwritten 2254 petition (Exh.
J1), and a one-page handwritten “Motion to Stay and Abeyance”
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
I Charles L. Jones # 69723 certify in compliance with
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.
March 28, 2003.
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
“disposition” portion on the bottom half contains nothing other
than the word “Yes” in handwriting that appears different from
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,
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
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
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.”
their Response to the court’s limited order to show
cause, respondents contend that the instant petition is timebarred
entitled to a March 2003 file date.
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
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.
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
Petitioner’s form 9 exhibit entitled “Inmate Request to
Staff Member” (Doc. 1-1, Exh. G) was likewise prepared and dated
support its authenticity.”
Haydon’s first affidavit is nothing
more than the officer’s statement that petitioner complied with
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.
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
official mail “many, many times” both before and after this
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.
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.
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
Circuit “extended this mailbox rule beyond the notice of appeal
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 &
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
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,
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
When the alleged initial pleading never reached the
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.
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.
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).
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
This statement seems contrary to the record cited earlier indicating
that Mr. Jones first 60-1507 motion was surrendered for mailing over a year
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
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.
submitted for mailing, actually mailed, or filed in March 2003.
Furthermore, federal court records are reliable proof that this
petition and motion were
neither received nor filed in this
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.
Petitioner obtained affidavits from
legal papers for mailing, but these statements are generic and
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”
“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.
confirmed receipt of the papers by signing the form 9.
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.”
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
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.
federal court, records are routinely generated.
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.
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
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
pleadings in question were eventually received by the court and
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 . . . .”).
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 purpose of
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.
Petitioner may not so easily
Another factor that generally underlies the
document allegedly submitted for mailing by Mr. Jones was a
against prison officials.
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
pleadings were not filed.
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
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
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
inquire about his federal petition or motion for several years,
he did not ascertain that they were not received and he could
A reasonably diligent litigant would have advised the
receipt had not been acknowledged and in which no order had been
Petitioner’s inaction prevented any timely corrective
Petitioner tries to explain his failure to inquire by
alleging that he was busy
claims in state court.
However, he does not explain his compunction to file a premature
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
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
It is settled law that only
action has such a tolling effect.
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
federal petition as time-barred.
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
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.
tolling is appropriate, for example, when a prisoner is actually
innocent, when an adversary’s conduct-or
circumstances-prevents a prisoner from timely filing, or when a
defective pleading during the statutory period.”
F.3d at 808.
The burden is on a petitioner to demonstrate the
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (“‘[A]n inmate
bears a strong burden to show specific facts to support his
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
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.
justify equitable tolling of the one-year limitation period.
indicating his actual innocence.
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).
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).
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
The court has considered respondents’ Motion to Dismiss in
In support of the latter argument, they called the
appeal in Jones IV.
Petitioner argues that “the issues he has
petition” and “are totally different.”
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
Id. at *1-*2.
Jones raises 17 claims.
In his instant federal petition, Mr.
Thirteen of those challenge the waiver
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
recognizing that juvenile brains are underdeveloped.
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.
In any event, the court
respondents’ Motion to Dismiss for failure to exhaust is denied
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
In order to be entitled to a stay he is required to
failure to exhaust the unexhausted claims, and (2) that the
habeas corpus review.
Rhines v. Weber, 544 U.S. 269, 277–78
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
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.”
Pursuant to 28
showing of the denial of a constitutional right,” and the court
jurists, that a court could resolve the issues differently, or
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
district court was correct in its procedural ruling.”
appealability should not issue in this case.
action as time barred is debatable or incorrect.
The record is
devoid of any authority suggesting that the Tenth Circuit Court
of Appeals would resolve the issues in this case differently.
certificate of appealability shall be denied.
IT IS THEREFORE ORDERED that a certificate of appealability
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
IT IS SO ORDERED.
Dated this 19th day of August, 2014, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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