Loggins (ID 34920) v. Schnurr et al

Filing 2

MEMORANDUM AND ORDER ENTERED: Petitioner is granted twenty (20) days in which to satisfy the filing fee and to show cause why this petition should not be dismissed for lack of jurisdiction. Signed by Senior District Judge Sam A. Crow on 8/14/2013. (Mailed to pro se party William Loggins by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WILLIAM LOGGINS,
Petitioner,
v.

CASE NO.

13-3104-SAC

DAN SCHNURR, et al.,
Respondents.
MEMORANUDM AND ORDER
This petition for writ of habeas corpus was filed pursuant to
28 U.S.C. § 2254 by a state inmate.

Petitioner seeks to challenge

his criminal convictions in 2000 in Sedgwick County District Court,
Wichita, Kansas.

Having examined the materials filed and pertinent

court records, the court finds that this petition is subject to being
dismissed as second and successive.

Petitioner is given time to

satisfy the filing fee prerequisite and to show cause why this action
should not be dismissed for the reasons stated herein.
The statutory fee for filing a habeas corpus petition is $5.00.
Petitioner has neither paid the fee nor submitted a properly
supported motion to proceed in forma pauperis (IFP).

The clerk is

directed to send forms for filing an IFP motion to petitioner.

This

matter may not proceed unless petitioner satisfies the fee in one
of these two ways.
On August 24, 2000, Mr. Loggins was convicted by a jury of

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aggravated kidnaping, aggravated robbery, and aggravated burglary
and was sentenced on October 13, 2000, to 713 months in prison. 1
Loggins v. State, 277 P.3d 448, *1 (Kan.App. June 2, 2012)(Table).
He directly appealed his conviction to the Kansas Court of Appeals
(KCA), which affirmed.

The Kansas Supreme Court (KSC) denied review

on February 4, 2003.
On

January

2,

2004,

Mr.

Loggins

filed

his

post-conviction motion pursuant to K.S.A. 60-1507.

145 P.3d 945 (Kan. App. 2006).

state

It was denied,

and he appealed to the KCA, which affirmed the denial.
Supreme Court denied review on March 27, 2007.

first

The Kansas

See Loggins v. State,

On October 14, 2010, Mr. Loggins filed

another 60-1507 petition that was denied as untimely.

He appealed

and the denial was affirmed by the KCA on June 1, 2012.

Loggins v.

State, 277 P.3d 448 (Kan.App. 2012), review denied (Kan. Mar. 26,
2013).
The court takes judicial notice of Loggins v. Cline, 568 F.Supp.
1265 (D.Kan. July 30, 2008)(Case No. 07-3113-JAR), appeal dismissed
317 Fed.Appx. 832 (10th Cir. 2009), cert. denied, 558 U.S. 1152 (2010).
This federal habeas corpus application filed by Mr. Loggins also
challenged his 2000 Kansas convictions.

In this prior petition, Mr.

Loggins claimed insufficient evidence to support his convictions of
aggravated

burglary

and

aggravated

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kidnaping,

ineffective

On April 3, 2000, Mr. Loggins filed a § 2254 petition in federal court that
was dismissed without prejudice for failure to exhaust state remedies. Loggins
v. Kansas, Case No. 00-3109-DES (April 20, 2000). He appealed, and the Tenth
Circuit dismissed that appeal on August 30, 2000 (App. Case No. 00-3117).

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assistance of trial and appellate counsel, and prosecutorial as well
as judicial misconduct.

The petition was denied on the merits.

Section 2244 of 28 U.S.C., provides in pertinent part:
(b)(1) A claim presented in a second or successive habeas
corpus application under section 2254 that was presented
in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas
corpus application under section 2254 that was not
presented in a prior application shall be dismissed
unless—
(A) the applicant shows that the claim relies
on a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable;
or
(B)(i) the factual predicate for the claim could
not have been discovered previously through the
exercise of due diligence; and
(ii) the facts underlying the claim, if proven
and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and
convincing
evidence
that,
but
for
constitutional error, no reasonable factfinder
would have found the applicant guilty of the
underlying offense.
(3)(A) Before a second or successive application permitted
by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider
the application.
Thus, it is clear that under 28 U.S.C. § 2244(b)(3)(A), a second or
successive petition for writ of habeas corpus may be filed in federal
district court only if the applicant first obtains an order from the
appropriate federal court of appeals authorizing the district court

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to consider the petition.

Id.

Some of the claims raised in the instant petition may be
different from those raised and decided in Mr. Loggins’ prior federal
application.

Nevertheless, the court finds that the instant

application is second or successive.

Woodward v. Williams, 263 F.3d

1135, 1142 (10th Cir. 2001), cert. denied, 535 U.S. 973 (2002).

Mr.

Loggins did not comply with the provisions of § 2244(b)(3)(A), but
filed his petition without obtaining prior authorization from the
Tenth Circuit.

As a result, it appears that this court lacks

jurisdiction to address the merits of any § 2254 claim asserted in
this petition.

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008);

see United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006).
Furthermore, it is clear that this petition is time-barred, as
the one-year statute of limitations expired in this case in 2007.2
This court may transfer this action pursuant to 28 U.S.C. § 1631
to the Tenth Circuit for prior authorization if it is in the interest
of justice to do so, or dismiss it for lack of jurisdiction.
Cline, 531 F.3d at 1252.

In re

However, the court has no difficulty

finding that the interest of justice would not be served by transfer
of the instant action to the Tenth Circuit Court of Appeals, and that
the petition should be dismissed instead.
2

The three primary

Petitioner has not used the court-approved forms for filing this
application, and appears to have instead followed his own format. If he had used
the appropriate forms, he would have been directed to address the issues of
successive applications and timeliness. Since he omitted these questions from
his application, he has alleged no grounds contrary to the court’s findings that
this petition is second and successive as well as time-barred.

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considerations governing a court’s decision whether to transfer or
dismiss are: (1) whether the action was in good faith filed in the
wrong court; (2) whether dismissal might make it difficult for the
petitioner to comply with the one-year federal limitations period;
and (3) whether the claim is likely to have merit.

See id. at 1251.

The first consideration does not support transfer in this case
because the statutory requirement of prior authorization for second
or successive habeas petitions from the Circuit Court has been in
effect for over 17 years, making it difficult for petitioner to
credibly allege that the filing of the instant petition in this court
without authorization was done in good faith.

See id at 1252.

Second, a dismissal will not make it any more difficult for petitioner
to comply with the applicable limitations period because the
limitations period expired years ago.

Petitioner’s 2007 federal

application was timely, but the one-year statute of limitations has
clearly expired for any attempt to amend his first petition to add
a new claim.
2000).

See U.S. v. Espinoza-Saenz, 235 F.3d 501, 504 (10th Cir.

Moreover,

the

instant

habeas

application

is

not

an

amendment, but a separate filing submitted over six years after the
2007 petition.
2000).

See Marsh v. Soares, 223 F.3d 1217, 1219 (10th Cir.

Finally, the fact that this case is time-barred leads the

court to conclude that transfer of this action would raise “false
hopes” and waste judicial resources on a case that is “clearly
doomed.”

Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000).
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For the foregoing reasons, the court declines to transfer this
application to the Tenth Circuit for authorization, and finds instead
that it should be dismissed for lack of jurisdiction in accordance
with 28 U.S.C. § 2244(b)(3).

Petitioner is given time to satisfy

the filing fee and to show cause why this petition should not be
dismissed for the reasons stated herein.

If he fails to comply

within the time provided, this action will be dismissed without
further notice.
IT IS THEREFORE ORDERED that petitioner is granted twenty (20)
days in which to satisfy the filing fee and to show cause why this
petition should not be dismissed for lack of jurisdiction because
it is second and successive and time-barred.
The clerk is directed to send IFP forms to petitioner.
IT IS SO ORDERED.
Dated this 14th day of August, 2013, at Topeka, Kansas.

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

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