Powell v. Heimgartner et al

Filing 21

MEMORANDUM AND ORDER ENTERED: Respondents' motion 12 to dismiss is denied. Respondents are granted to and including September 6, 2013, to address the merits of the petition. The clerk of the court shall return the state court records to the respondent. Counsel for petitioner shall remain appointed to assist him unless the court grants permission to withdraw from this matter upon motion of counsel. Signed by Senior District Judge Sam A. Crow on 7/31/2013. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RICHARD T. POWELL,
Petitioner,
v.

CASE NO. 12-3119-SAC

JAMES HEIMGARTNER, et al.,
Respondents.

MEMORANDUM AND ORDER

This matter, a petition for habeas corpus filed pursuant to 28
U.S.C. § 2254, comes before the court upon respondents’ motion to
dismiss (Doc. 12). Counsel appointed for petitioner filed a response
to the motion (Doc. 19).
Factual background
Petitioner was convicted on July 15, 1999, of capital murder,
in violation of K.S.A. 21-3439, and criminal possession of a firearm,
in violation of K.S.A. 21-404. On August 27, 1999, he was sentenced
to a term of life imprisonment on the capital murder conviction and
a consecutive term of 23 months on the firearm conviction.
The Kansas Supreme Court affirmed the conviction and sentence
on October 25, 2002. State v. Powell, 56 P.3d 189 (Kan. 2002).
Petitioner did not seek review in the United States Supreme Court,
and the time expired on January 23, 2003.
Approximately

eight

months

later,

on

September

18,

2003,

petitioner filed an action for post-conviction relief in the District
Court of Wyandotte County, Kansas, pursuant to K.S.A. 60-1507. Relief
was denied on May 14, 2005. The Kansas Court of Appeals reversed that

dismissal and remanded the matter on March 30, 2007.
The state district court conducted an evidentiary hearing and
denied relief on January 19, 2008. The Kansas Court of Appeals affirmed
the denial on September 24, 2010, and the Kansas Supreme Court denied
review on May 16, 2011.
The petition for habeas corpus was executed on April 30, 2012
(Doc. 1, p. 18), approximately eleven months later, and a declaration
on the form shows it was placed in the prison mailing system on the
same date. Id.
Analysis
A petition filed pursuant to § 2254 is subject to a one-year
limitation period. 28 U.S.C. § 2244(d)(1). The period commences when
the petitioner’s direct appeal becomes final, that is, upon the
expiration of the 90-day time for seeking review in the United States
Supreme Court or the resolution of such a request for review. Locke
v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). The limitation period
is

tolled

during

the

pendency

of

a

properly-filed

state

post-conviction action. 28 U.S.C. § 2244(d)(2); Hoggro v. Boone, 150
F.3d 1223, 1226 (10th Cir. 1998).
Petitioner’s

convictions

became

final,

for

habeas

corpus

purposes, on January 23, 2003, ninety days after the Kansas Supreme
Court affirmed the convictions. The limitation period began to run
and was tolled on September 18, 2003, when petitioner filled a state
post-conviction action. At that point, 238 days had run on the one-year
limitation period. The statute remained tolled until May 16, 2011,
when the Kansas Supreme Court denied review. The statute again began
to run, with 127 days remaining. Absent tolling, the limitation period
had expired before petitioner commenced the present habeas corpus

action.
The one-year limitation period is subject to equitable tolling
in appropriate circumstances. See Holland v. Florida, 130 S.Ct. 2549,
2560 (2010). Such tolling is limited to “rare and exceptional
circumstances”. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).
Among

the

recognized

circumstances

that

may

qualify

for

equitable tolling in the Tenth Circuit is a petitioner’s mental
incapacity, including claims of mental impairment. See Rawlins v.
Newton-Embry, 352 F. App’x 273, 276 (10th Cir.2009)(“[E]quitable
tolling because of mental illness is only warranted in circumstances
such as adjudication of incompetence, institutionalization for mental
incapacity, or evidence that the individual is not capable of pursuing
[his] own claim because of mental incapacity.”)(internal quotations
and citations omitted) and Reupert v. Workman, 45 Fed. Appx. 852, 854
(10th Cir. 2002)(equitable tolling may be appropriate where there is
adequate proof of mental incompetence, including an adjudication of
such incompetence).
In addition, the Tenth Circuit requires a showing that a party
seeking equitable tolling has diligently pursued his claims. See
Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
Counsel for petitioner points out that he has been adjudicated
as mentally incompetent by the State of Kansas.1 Counsel also contends
that petitioner’s inability to pursue his claims independently is
evident, noting that he pursued post-conviction relief with the
assistance of counsel but has been unable to pursue the present action
in a timely manner absent such assistance. Indeed, the present

1

Petitioner was determined to be ‘mentally retarded’ as defined by K.S.A. 21-4623(e)
by the state district court following a series of evaluations. R. XIX pp. 4-5.

petition appears to have been prepared by another person, as the final
page of the petition contains the following statement:
If the person signing is not petitioner, state relationship
to petitioner and explain why petitioner is not signing this
petition. Mr. Powell is mentally retarded.2
Finally, it appears that petitioner has pursued his claims with
diligence, as shown by the record of state court proceedings and his
attempt to pursue this matter with the assistance of another person.
Having considered the record and the arguments of the parties, the
court concludes the petitioner is entitled to equitable tolling in
this matter. Accordingly, the court will deny the respondents’ motion
to dismiss this matter and will direct respondents to address the
merits of the petition.
IT IS, THEREFORE, BY THE COURT ORDERED respondents’ motion to
dismiss (Doc. 12) is denied.
IT IS FURTHER ORDERED respondents are granted to and including
September 6, 2013, to address the merits of the petition.
IT IS FURTHER ORDERED the clerk of the court shall return the
state court records to the respondents.
IT IS FURTHER ORDERED counsel for petitioner shall remain
appointed to assist him unless the court grants permission to withdraw
from this matter upon motion of counsel.
Copies of this order shall be transmitted to the parties.

2

Doc. 1, p. 18.

IT IS SO ORDERED.
DATED:

This 31st day of July, 2013, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge