White (ID 76983) v. Roberts et al

Filing 33

MEMORANDUM AND ORDER ENTERED: Respondents' motion 25 to dismiss is granted. Petitioner's motion 30 for judgment as a matter of law and motion 31 for summary judgment are denied. Signed by Senior District Judge Sam A. Crow on 08/19/14. Mailed to pro se party Bobby Bruce White by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BOBBY BRUCE WHITE,
Petitioner,
v.

CASE NO. 13-3126-SAC

RAY ROBERTS, et al.,
Respondents.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed pursuant to
28 U.S.C. § 2254. Respondents have filed a motion to dismiss this
matter on the ground that petitioner failed to commence this action
within the one-year limitation period. Petitioner has filed a
response.
Background
Petitioner is serving a term of life imprisonment following his
August 2005 conviction, upon retrial, for first-degree murder in
violation of K.S.A. 21-3401. On June 22, 2007, the Kansas Supreme Court
affirmed the conviction on direct appeal. State v. White, 161 P.3d
208 (Kan. 2007).
On May 19, 2008, petitioner filed a state post-conviction action
pursuant to K.S.A. 60-1507. The state district court denied relief
on June 5, 2009, and on February 4, 2011, the Kansas Court of Appeals
affirmed that decision. White v. State, 2001 WL 428656 (Kan.App.
2011)(unpublished opinion). On March 1, 2011, petitioner filed a
motion for review in the Kansas Supreme Court. That court denied review
on April 25, 2011.

Petitioner filed the present action on July 18, 2013.
Discussion
This matter is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA). The AEDPA established a one-year limitation
period for filing a petitioner pursuant to § 2254. Rhine v. Boone,
182 F.3d 1153, 1154 (10th Cir. 1999). The limitation period runs from
the latest of:
(A)
(B)

(C)

(D)

The date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;
The date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing
by such State action;
The date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on
collateral review; or
The date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence. 28 U.S.C.
§2244(d)(1)(A)-(D).

The limitation period is tolled during the pendency of a
properly-filed “application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim.”
28 U.S.C. § 2244(d)(2).
Here, the Kansas Supreme Court affirmed petitioner’s conviction
on June 22, 2007, and the limitation period began to run 90 days later,
on September 20, 2007, upon the expiration of the time for seeking
review in the United States Supreme Court. See Locke v. Saffle, 237

F.3d 1269, 1273 (10th Cir. 2001)(conviction becomes final after U.S.
Supreme Court denies review, or, “if no petition for certiorari is
filed, after the time for filing a petition for certiorari with the
Supreme Court has passed.”)
The limitation period continued to run until May 19, 2008, when
petitioner filed a post-conviction motion pursuant to K.S.A. 60-1507.
The limitation period resumed running upon the conclusion of
post-conviction review on April 25, 2011, and expired on August 29,
2011. Petitioner filed the instant petition for habeas corpus on July
18, 2013, nearly two years later.
When a petitioner fails to file the petition within the one-year
period, he may avoid the one-year time bar only by showing actual
innocence, see McQuiggin v. Perkins, __ U.S. __, __, 133 S.Ct. 1924,
1931 (2013), or by establishing grounds for equitable tolling by
showing that extraordinary circumstances beyond his control prevented
him from compliance with the limitation period. Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005).
Petitioner’s arguments for equitable tolling are based first,
upon his difficulty in pursuing legal remedies due to his conditions
of confinement, and second, upon the lack of notice of the decision
of the Kansas Supreme Court.
Equitable tolling is available only when a petitioner
“demonstrates that the failure to timely file was caused by
extraordinary circumstances beyond his control.” Marsh v. Soares, 223
F.3d 1217, 1220 (10th Cir. 2000). Even where such circumstances are

established, “this Circuit has generally declined to apply equitable
tolling when it is facially clear from the timing of the state and
federal petitions that the petitioner did not diligently pursue his
federal claims.” Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003).
The petitioner has the burden of presenting specific facts that
demonstrate extraordinary circumstances and due diligence. Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008).
While petitioner broadly claims that he was denied access to
legal resources, forms, addresses, and the opportunity to file, he
provides little specific information that explains how these events
caused the lengthy delay in submitting this petition. A petitioner’s
bare assertions of interference are not sufficient to justify
equitable tolling. See, e.g. United States v. Martinez, 303 Fed.Appx.
590, 596 (10th Cir. 2008)(unpublished)(equitable tolling not available
where petitioner “has not provided … specific details regarding what
restrictions actually were placed on his access to legal materials
or how such restrictions hindered his ability to file … in a timely
manner.”) and Coppage v. McKune, 534 F.3d 1279, 1282 (10th Cir.
2008)(“Even with limited access to a prison law library, [petitioner]
could raise …only issues previously submitted in state court, so much
of the research would already have been done.”)
Because petitioner fails to specifically identify how any such
denial of materials or assistance prevented him from filing his
petition in a timely manner, the court finds no basis for allowing
equitable tolling on that basis.

Petitioner also asserts he is entitled to equitable tolling
because he did not receive timely notice of the decision of the Kansas
Supreme Court from his attorney. As noted, the Kansas Supreme Court
entered its decision on April 25, 2011. Petitioner reports that his
counsel claims he mailed notice of the decision to petitioner on April
28, 2011. Petitioner states that at around that time he was transferred
to another facility for court proceedings in another matter, and he
returned to the Larned State Hospital in February 2012. He states that
between February and August 2012, he attempted to contact his attorney
but got no response. (Doc. 27, p. 7.)
These facts do not warrant equitable tolling. Petitioner does
not persuasively allege diligence. He does not explain whether he made
any effort to contact the Kansas Supreme Court for information on the
status of his case, does not provide a detailed explanation of his
efforts to contact his counsel, and states only that in the absence
of a reply from counsel, he filed a petition for clemency. See LaCava
v. Kyler, 398 F.3d 271, 276-78 (3d Cir. 2005)(no extraordinary
circumstances found where attorney failed to forward disposition of
case and petitioner did not show due diligence by waiting twenty-one
months to seek information).
Conclusion
Having examined the record, the court concludes this matter must
be dismissed as time-barred. Petitioner has neither established any
sufficient ground for equitable tolling nor demonstrated actual
innocence.

IT IS, THEREFORE, BY THE COURT ORDERED respondents’ motion to
dismiss (Doc. 25) is granted.
IT IS FURTHER ORDERED petitioner’s motion for judgment as a
matter of law (Doc. 30) and motion for summary judgment (Doc. 31) are
denied.
Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.
DATED:

This 19th day of August, 2014, at Topeka, Kansas.

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