Jones (ID 69723) v. Heimgartner et al

Filing 7

MEMORANDUM AND ORDER ENTERED: Petitioner is granted thirty (30) days to show cause why this petition for writ of habeas corpus should not be dismissed as time barred. Petitioner's motion 2 for leave to proceed in forma pauperis is granted; h is motion 3 for evidentiary hearing, motion 4 to appoint counsel, motion 5 for amendment of 2254 petition, and motion 6 for leave to conduct discovery are denied without prejudice. Signed by Senior District Judge Sam A. Crow on 4/20/2012. (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.
MEMORANDUM AND ORDER
This petition for writ of habeas corpus, 28 U.S.C. § 2254, was
filed pro se by an inmate of the El Dorado Correctional Facility, El
Dorado, Kansas.

Petitioner has also filed a Motion for Leave to

Proceed in forma pauperis, which the supporting financial records
indicate should be granted.

PROCEDURAL HISTORY
When Mr. Jones was 16 years old he was “certified to stand
trial as an adult on the charge of first-degree murder for (the
1998) shooting death of Robert Trzok.

The victim was shot three

times in the back of the head, causing his immediate death.”

State

v. Jones, 273 Kan. 756, 47 P.3d 783, 786 (Kan. 2002), cert. denied,
537 U.S. 980 (2002).

Jones was convicted by a jury of first-degree

murder and sentenced on March 17, 2000, to life in prison with no
chance of parole for 25 years.
WL 2416069 (Kan.App. 2005).

Jones v. State, 120 P.3d 381, 2005

He directly appealed, and the Kansas

Supreme Court affirmed his conviction and sentence on May 31, 2002.
The United States Supreme Court denied review on October 21, 2002.
Mr. Jones filed a 60-1507 motion in the state district court
on July 9, 2004.

The motion was dismissed as filed a day or so

late, even though Jones had argued that he had requested approval
from prison authorities to mail his motion on June 29, 2004.
dismissal was reversed on appeal.

Jones, 120 P.3d 381 at *3.

This
The

district court then appointed counsel, held an evidentiary hearing
on the merits of the 60-1507 motion, and denied the motion.

Mr.

Jones appealed to the Kansas Court of Appeals (KCA), which affirmed
on March 27, 2009.

The Kansas Supreme Court denied a Petition for

Review on January 7, 2010.
“Approximately 3 months after” the KCA denied relief in the 601507 proceedings, Mr. Jones filed a motion to correct illegal
sentence.

The trial court denied the motion in a letter decision.

See State v. Jones 257 P.3d 268, 270 (Kan. 2011).

Jones appealed,

and the Kansas Supreme Court affirmed the denial on August 12, 2011.
The U.S. Supreme Court denied certiorari on January 17, 2012.
Petitioner states that he filed a motion for rehearing with the U.S.
Supreme Court on January 31, 2012.
Mr. Jones executed the instant federal petition on February 24,
2012.

He presents 17 grounds for relief, and alleges that state

remedies have been exhausted on each of his claims.

STATUTE OF LIMITATIONS
The procedural history of this case presents the threshold
question of the timeliness of the federal petition filed by Mr.
Jones.

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.

2

The “limitation period shall run from” the “latest of” four dates,
including “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.”

28 U.S.C. § 2244(d)(1)(A).

The statute

provides, however, for tolling of the statute of limitations during
the pendency of any “properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim . . . .”

28 U.S.C. § 2244(d)(2).

It appears from the foregoing procedural history that without
either statutory or equitable tolling this federal petition is timebarred.
case,

Applying the statutory provisions to the facts of this
petitioner’s

conviction

“became

final”

for

limitations

purposes on October 21, 2002, the date on which all possible steps
of his direct appeal were complete.

The statute of limitations for

filing his federal habeas corpus petition began to run the next day.
It continued to run without interruption until it expired on or
about October 22, 2003.
Mr. Jones makes the claim that he filed a § 2254 petition in
this court in 2003 together with a motion to stay.
claim is not substantiated.

However, this

In support, he exhibits a two-page

handwritten § 2254 petition, that is not on forms, which he prepared
and dated as executed on March 28, 2003.

In a “Certificate of

Service” on this document he stated that it “was handed to the HCF
prison correctional officer prepaid first class postage on March 28,
2003, to be deposit (sic) in the prison mailing system . . . for
mailing to the Kansas federal district court.”

Petitioner also

exhibits a “Motion to Stay and Abeyance” in which he stated that he
needed “to exhaust 6 claims first in state court on post conviction
3

60-1507 petition,” with the same “Certificate of Service” language.
In addition, he provides an affidavit from a correctional official
attesting only that the process in 2003 was for inmates to give
their legal petitions to a prison official for mailing.

Petitioner

states in his pleading that he has not previously filed any petition
in federal court regarding the conviction being challenged.

At the

same time, he makes the contrary statement that the § 2254 petition
he prepared in 2003 is now pending in this court, and that the
“foregoing 2254 petition is an Amendment and should relate back to
the 2254 petition that was filed on March 28th, 2003.”
Petitioner does not provide a federal court case number or a
copy of a file-stamped pleading from a pending 2003 federal habeas
case.

The court has searched its case files and finds no habeas

corpus petition filed by anyone named Charles Jones in 2003.

Mr.

Jones does not present evidence that he paid a filing fee, that he
complied with the court rule to submit the petition upon forms, or
that he received any type of response or order from this court in a
2003 case.

Nor does he show that he inquired about this alleged

2003 petition at any time during the one-year limitation period or
any of

the

subsequent

8

years.

Petitioner’s

allegations

and

exhibits are simply not sufficient to show that he actually caused
a § 2254 petition and motion to stay to be filed in this court in
2003.
Even if such a premature petition prepared by Mr. Jones had
reached this federal court and been filed in 2003, its pendency
would not have tolled the statute of limitations.

Rhines v. Weber,

544 U.S. 269, 574-75 (2005)(“‘the filing of a petition for habeas
corpus in federal court does not toll the statute of limitations.”).
4

Only a properly filed state post-conviction action has the tolling
effect provided for in § 2244(d)(2).

Federal district courts must

dismiss petitions that contain unexhausted claims.
Ford, 542 U.S. 225 (2004).

See Pliler v.

A federal petition in which failure to

exhaust was admitted would in the normal course have been dismissed
without prejudice.

And, while the granting of a motion to stay

could have saved petitioner from the federal time-bar, a motion to
stay was never filed by Mr. Jones or granted in federal court.

The

exhibited motion for stay would have been denied, since it does not
show the requisite grounds for a stay and, at the time of the
alleged filing, several months remained in the federal statute of
limitations in this case.
Petitioner also asserts that the untimeliness of his 2012
petition

should

be

excused

based

upon

exceptions

innocence and fundamental miscarriage of justice.

for

actual

However, he does

not allege sufficient facts to show his entitlement to equitable
tolling on either of these grounds.

His assertions of actual

innocence are based upon legal arguments that he should not have
been tried as an adult, rather than new evidence of his factual
innocence of the crime.

His arguments regarding the merits of his

habeas claims are not sufficient to establish his entitlement to the
miscarriage

of

justice

exception.

Mr.

Jones

is

given

the

opportunity to show that he is entitled to equitable tolling1 and

1
“AEDPA's one-year statute of limitations is subject to equitable
tolling but only ‘in rare and exceptional circumstances.’” Gibson v. Klinger, 232
F.3d 799, 808 (10th Cir. 2000)(citing Davis v. Johnson, 158 F.3d 806, 811 (5th
Cir.1998), cert. denied, 526 U.S. 1074 (1999)). Equitable tolling 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. denied, 531 U.S. 1194
(2001).
It would be appropriate, for example, when a prisoner is actually

5

that his petition should not be dismissed as time-barred.

If he

fails to allege additional facts to make such a showing within the
time allotted this action will be dismissed as time-barred.

MOTIONS FOR COUNSEL AND AN EVIDENTIARY HEARING
The court has considered petitioner’s Motion for Appointment of
Counsel (Doc. 4) and finds that it should be denied.

There is no

right to appointment of counsel in federal habeas corpus proceedings
unless an evidentiary hearing is required.

Petitioner’s motion for

an evidentiary hearing (Doc. 3) on the grounds stated in the motion
is also denied.

Both motions are denied without prejudice.

The

court will reconsider appointment of counsel in the event that it
eventually reviews the state record and finds an evidentiary hearing
is required.

At this juncture, it appears more likely that this

innocent, Miller, 141 F.3d at 978, or “when an adversary’s conduct-or other
uncontrollable circumstances-prevents a prisoner from timely filing.” Gibson, 232
F.3d at 808 (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)).
Complaints about unfamiliarity with the legal process and illiteracy have been
found to provide no basis for equitable tolling. See Scott v. Johnson, 227 F.3d
260, 263 FN3 (5th Cir. 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 untimely filing, even for an incarcerated pro se prisoner. Marsh, 223 F.3d
at 1220; Miller, 141 F.3d at 978; Gibson, 232 F.3d at 808. Complaints regarding
post-conviction counsel likewise generally do not entitle a petitioner to
equitable tolling. As the Tenth Circuit explained in Hallcy v. Milyard, 387 Fed.
Appx. 858 (10th Cir. 2010)(unpublished):
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.” Id. at
*12 (internal quotation marks omitted); accord Yang v.
Archuleta, 525 F.3d 925, 929 (10th Cir. 2008)(“‘Equitable
tolling is a rare remedy to be applied in unusual
circumstances, not a cure-all for an entirely common
state of affairs.’” (quoting Wallace v. Kato, 549 U.S.
384, 396 (2007))).
Id.

6

action will be dismissed as time-barred.

MOTION TO AMEND
Petitioner’s “Motion Request for Amendment of 2254 Petition”
(Doc. 5) is denied.2

In this motion, petitioner asks the court to

allow him to amend “his principal 2254 federal petition that was
file (sic) on March 28th 2003 . . . to add the additional grounds
that has (sic) been exhausted in state court.”

As fully explained

earlier, this court has no record of having received a federal
habeas corpus petition from Mr. Jones in 2003, and he has not
substantiated his claim that such a petition was filed and is
pending.

Petitioner cites no authority for this court to rule that

his 2012 petition is an amendment to a petition that was never
received and filed in federal court.3
2
A habeas petition may be amended “as provided in the rules of
procedure applicable to civil actions.” 28 U.S.C. § 2242. The Federal Rules of
Civil Procedure provide that the “court should freely give leave (to amend) when
justice so requires.” Fed.R.Civ.P. 15(a). On the other hand, leave to amend is
not appropriate unless the new claims relate back to the original petition under
Rule 15(c). See Mayle v. Felix, 545 U.S. 644, 650 (2005). Pursuant to Rule
15(c), an amendment relates back to the original filing if “the amendment asserts
a claim or defense that arose out of the conduct, transaction, or occurrence set
out-or attempted to be set out-in the original pleading.” Fed.R.Civ.P.
15(c)(1)(B). With respect to amendment of habeas petitions, however, the Supreme
Court has determined that “[a]n amended habeas petition . . . does not relate back
(and, thereby escape AEDPA’s one-year time limit) when it asserts a new ground for
relief supported by facts that differ in both time and type from those the
original pleading set forth.” Felix, 545 U.S. 644, 650 (2005). That the grounds
for relief are related to the petitioner’s trial and conviction is, by itself,
insufficient. Id. Rather, “relation back depends on the existence of a common
‘core of operative facts’ uniting the original and newly asserted claims.” Id.
at 659.
3

Even if Mr. Jones had actually filed a 2003 petition that was
dismissed without prejudice for failure to exhaust, his 2012 petition would not
relate back to it.
In Marsh, 223 F.3d at 1220, the Tenth Circuit found the
following reasoning of the Fifth Circuit convincing in refusing to view a
petitioner’s “third habeas application not as never having been filed, but as
stayed pending exhaustion:
[I]f § 2244(d) were interpreted as Petitioner argues, the result
would be impractical. A habeas petitioner could file a non-exhausted
application in federal court within the limitations period and suffer
a dismissal without prejudice. He could then wait decades to exhaust
his state court remedies and could also wait decades after exhausting

7

MOTION FOR LEAVE TO CONDUCT DISCOVERY
This motion is not presented as one to compel discovery under
the

Federal

Rules

of

Civil

Procedure

and

does

not

include

information about attempts already made by petitioner to obtain this
information without court order.

Of course, Mr. Jones is free to

seek access to his own mental health and other records.
does not convince the court in his motion that he is

However, he

entitled to an

order from this court requiring the respondent and various other
entities, some of which are not even parties to this action, to
provide

him

with

mental

health

records

and

“facility

files”

pertaining to his behavior, education, mental health and related
information as well as law enforcement records pertaining to the
murder victim.

He also asks the court to order a lie detector test

and a psychological evaluation.

In addition, he asks for the court

to “order the release” of records of disciplinary complaints against
his

court-appointed

attorney

to

prove

that

his

attorney

ineffective and that he was prejudiced as a result.

was

Petitioner

alleges that he seeks this information to show that he was treatable
and amenable for rehabilitation under the juvenile code and to

his state remedies before returning to federal court to ‘continue’
his federal remedy, without running afoul of the statute of
limitations.
Construing an application filed after a previous
application is dismissed without prejudice as a continuation of the
first application for all purposes would eviscerate the AEDPA
limitations period and thwart one of AEDPA's principal purposes.
Id. (citing Graham v. Johnson, 168 F.3d 762, 780 (5th Cir. 1999).

The Tenth

Circuit then proceeded to:
join with all the circuit courts which have addressed this issue, and
hold that a habeas petition filed after a previous petition has been
dismissed without prejudice for failure to exhaust state remedies
does not relate back to the earlier petition.
Id. (citations omitted).

8

produce evidence that he should have been tried as a juvenile.
A habeas petitioner, unlike a regular civil litigant in
federal court, is not entitled to discovery as a matter of course.
Bracy v. Gramley, 520 U.S. 899, 904 (1997)(citing Rules Governing §
2254 Cases, Rule 6(a)). Discovery is available only if the district
judge finds “good cause” to order it.

Petitioner fails to provide

sufficient facts or authority to show good cause for his discovery
requests. He does not allege sufficient facts indicating that these
records

would

be

exculpatory

in

this

federal

habeas

corpus

proceeding or call into question the jury’s finding that he murdered
the victim.

He does not list the documents he seeks, adequately

describe what these records would show, or present a factual basis
that would be substantiated by the documents and records.

Nor does

he allege facts indicating diligent efforts were made to obtain and
present these records during his state trial or post-conviction
proceedings

or

that

they

were

improperly

denied.

The

court

concludes that to the extent Mr. Jones is requesting discovery under
Rule 6(a) and (b) of the Rules Governing Section 2254 Cases, his
conclusory allegations in his motion fail to establish good cause.
See Payne v. McKune, 280 F.Supp.2d 1259, 1270 fn. 8 (D.Kan. 2003),
LaFevers v. Gibson, 182 F.3d 705, 722-23 (10th Cir. 1999).

Good

cause is not shown where no facts are alleged that would provide a
basis for relief.

Id.

Moreover if, as it appears, petitioner has not already obtained
this evidence and presented it in state court, he may not rely upon
it in this federal habeas corpus proceeding.

As the Tenth Circuit

pointed out in Fairchild v. Workman, 579 F.3d 1134, 1155 (10th Cir.
2009):
9

AEDPA explicitly provides that federal court review of the
reasonableness of the state court’s factual findings must
be made “in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d); see Hammon v.
Ward, 466 F.3d 919, 928 (10th Cir. 2006)(“In reviewing the
OCCA's adjudication of Petitioner's ineffective assistance
of appellate counsel claim, we consider the record as it
existed before the OCCA.”). Evidence presented for the
first time in federal court is not relevant to whether the
state court decision was “contrary to, or involved an
unreasonable application of, clearly established Federal
law.” 28 U.S.C. § 2254(d)(1). It is surely not
“unreasonable” for the state court to base its decision on
the only facts that have been put before it.
The court cited 28 U.S.C. § 2254(e)(2), which provides:
If the applicant has failed to develop the factual basis
of a claim in State court proceedings, the court shall not
hold an evidentiary hearing on the claim unless the
applicant shows that(A) the claim relies on(i) a new rule of constitutional law, made retroactively
applicable to cases on collateral review by the Supreme
Court, that was previously unavailable, or
(ii) a factual predicate that could not have been
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable fact-finder would have
found the applicant guilty of the underlying offense.
Fairchild, 579 F.3d at 1158.

The United States Supreme Court

recently also considered “the scope of the record for a § 2254(d)(1)
inquiry” and held as follows:
The State argues that review is limited to the record that
was before the state court that adjudicated the claim on
the merits. Pinholster contends that evidence presented
to the federal habeas court may also be considered. We
agree with the State.
* * *
We now hold that review under § 2254(d)(1) is limited to
the record that was before the state court that
adjudicated the claim on the merits. Section 2254(d)(1)
refers, in the past tense, to a state-court adjudication
that “resulted in” a decision that was contrary to, or
10

“involved” an unreasonable application of, established
law.
This
backward-looking
language
requires
an
examination of the state-court decision at the time it was
made. It follows that the record under review is limited
to the record in existence at that same time i.e., the
record before the state court.
This understanding of the text is compelled by “the
broader context of the statute as a whole,” which
demonstrates Congress' intent to channel prisoners’ claims
first to the state courts. Robinson v. Shell Oil Co., 519
U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997).
“The federal habeas scheme leaves primary responsibility
with the state courts . . . .” Visciotti, supra, at 27,
123 S.Ct. 357. Section 2254(b) requires that prisoners
must ordinarily exhaust state remedies before filing for
federal habeas relief.
It would be contrary to that
purpose to allow a petitioner to overcome an adverse
state-court decision with new evidence introduced in a
federal habeas court and reviewed by that court in the
first instance effectively de novo.
Limiting § 2254(d)(1) review to the state-court record is
consistent with our precedents interpreting that statutory
provision. . . .
It would be strange to ask federal
courts to analyze whether a state court’s adjudication
resulted in a decision that unreasonably applied federal
law to facts not before the state court.
Cullen v. Pinholster, 131 S.Ct. 1388, 1398-99, 179 L.Ed.2d 557 (Apr.
4, 2011).

The Court concluded:

Although state prisoners may sometimes submit new evidence
in federal court, AEDPA's statutory scheme is designed to
strongly discourage them from doing so. Provisions like
§§ 2254(d)(1) and (e)(2) ensure that “[f]ederal courts
sitting in habeas are not an alternative forum for trying
facts and issues which a prisoner made insufficient effort
to pursue in state proceedings.” (Citations omitted).
Id. at 1401.

“[T]he state trial on the merits [should be] the ‘main

event,’ so to speak,” and is not a ‘tryout on the road’ for a later
federal habeas hearing.

Id. (quoting Wainwright v. Sykes, 433 U.S.

72, 90 (1977).
IT IS THEREFORE BY THE COURT ORDERED that petitioner is granted
thirty (30) days to show cause why this petition for writ of habeas
corpus should not be dismissed as time barred.
11

IT IS FURTHER ORDERED that petitioner’s Motion for Leave to
Proceed in forma pauperis (Doc. 2) is granted; and his Motion for
Evidentiary Hearing (Doc. 3), Motion to Appoint Counsel (Doc. 4),
Motion for Amendment of 2254 Petition (Doc. 5), and Motion for Leave
to Conduct Discovery (Doc. 6) are denied, without prejudice.
IT IS SO ORDERED.
Dated this 20th day of April, 2012, at Topeka, Kansas.

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

12