Gant (ID 88907) v. Cline et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Petitioner is granted thirty (30) days in which to show cause why this petition for writ of habeas corpus should not be dismissed on account of petitioner's failure to exhaust state court remedies and as time-barred. Signed by Senior District Judge Sam A. Crow on 10/24/2013.(Mailed to pro se party Christopher D. Gant by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHRISTOPHER D. GANT,
Petitioner,
v.

CASE NO.

13-3172-SAC

SAM CLINE, et al.,
Respondents.
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was filed pursuant
to 28 U.S.C. § 2254 by an inmate of the Hutchinson Correctional
Facility, Hutchinson, Kansas.

Petitioner has also filed a Motion

for Leave to Proceed in forma pauperis with financial information
in support indicating that the motion should be granted.

Having

considered the materials filed, the court finds that Mr. Gant fails
to show that he has exhausted state court remedies on the claims
raised in his petition and that the petition appears not to have been
filed within the one-year statute of limitations.1

BACKGROUND
In 2006, petitioner was convicted by a jury in the District Court
1
Obviously, a state prisoner’s failure to timely file his federal petition
is grounds for dismissal with prejudice, and Mr. May might be required to address
this issue only. However, he is given the opportunity to show that this action
is not time-barred. If he somehow makes this showing, he will still have to satisfy
the exhaustion prerequisite. Meanwhile, the federal limitations period would
continue running because the pendency of this federal habeas petition has no
tolling effect. Only a pertinent post-conviction motion pending in state court
can toll the federal statute of limitations.

1

of Sedgwick County, Kansas, of felony murder and attempted aggravated
robbery.

On December 28, 2006, he was sentenced to a term of life

imprisonment for the felony murder and a consecutive term of 34 months
for the attempted aggravated robbery.

He directly appealed to the

Kansas Supreme Court (KSC), which affirmed on January 30, 2009.
State v. Gant, 288 Kan. 76, 201 P.3d 673 (Kan. 2009).2
On February 4, 2010, Mr. Gant filed a post-conviction motion
pursuant to K.S.A. 60-1507 in the trial court, which was denied.3

He

appealed the denial to the Kansas Court of Appeals (KCA), which
affirmed on January 13, 2012.

Mr. Gant filed a Petition for Review

that was denied on February 19, 2013.
Mr. Gant executed the instant application for federal habeas

2
The claims raised by Mr. Gant on direct appeal were summarized by the
KCA in their opinion on collateral appeal as follows:
On direct appeal, Gant challenged (1) the admission of his statements
to detectives on the grounds he requested counsel before the
interview, (2) the alleged prejudice caused by the detective sitting
at the prosecutor's table, and (3) the constitutionality of his
aggravated prison term for attempted aggravated robbery. In Gant's
supplemental brief he argued (1) that there was insufficient evidence
to sustain his convictions and (2) that it was fundamentally unfair
to sentence him for a felony murder conviction when a codefendant
received a plea that resulted in dismissal of felony-murder charges.
Gant v. State, 266 P.3d 1253 (Kan.App. 2012).
3
The KCA described petitioner’s claims of ineffective assistance of counsel
raised in this 60-1507 petition as:
Gant specifically alleged that counsel was ineffective for (1) failing
to file a motion to suppress evidence of guns and ammunition, (2)
failing to object when this evidence was introduced at trial, (3)
failing to object to evidence of his flight, and (4) failing to move
to suppress his statements made to detectives after he requested
counsel.
Gant v. State, 266 P.3d 1253, at *1.

2

corpus relief on either September 24 or 27, 2013.4

GROUNDS RAISED IN FEDERAL PETITION
As Ground (1) in his federal petition, Mr. Gant claims that the
evidence was insufficient to convict him of the crimes charged.

As

factual support, he alleges that the information charged him as a
principal only, that the evidence presented at trial supported a
charge that he aided and abetted only, that the elements of aiding
and abetting were not included in the complaint, that the complaint
was therefore fatally defective, and that the jury was improperly
instructed that they could find him guilty as either a principal or
an aider and abetter.
As Ground (2), petitioner claims that his Sixth Amendment right
to effective assistance of appellate counsel was violated in that
his appellate counsel failed to argue his claim in ground (1).

As

factual support, he incorporates the facts alleged in support of
ground (1).
As Ground (3), petitioner claims that the trial court violated
his Fifth and Fourteenth Amendment rights when it “failed to instruct
the jury on a lesser included crime for felony murder.”

As factual

support, he alleges that evidence was presented at trial “tending
to prove the shooting was done in imperfect self-defense,” that the
“victim pulled out a gun and the shooter took action to defend himself
4
Mr. Gant has written over the day several times and it is therefore not
legible.

3

or others,” that the evidence also “tended to prove that the shooting
was done in the heat of passion or upon a sudden quarrel,” and that
as a result “a reasonable jury could have found the killing was either
second-degree intentional, or voluntary manslaughter.”
As

Ground

(4),

petitioner

claims

that

appellate

and

post-conviction counsel were ineffective because they failed to
present the claim in Ground (3).

CLAIMS ARE NOT EXHAUSTED
“A state prisoner must give the state courts an opportunity to
act on his claims before he presents those claims to a federal court
in a habeas petition.”
(1999).

O’Sullivan v. Boerckel, 526 U.S. 838, 842

It is the petitioner’s burden to prove that he fully

exhausted all state court remedies prior to filing his petition in
federal court.

28 U.S.C. § 2254(b)(1) provides:

An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that B- (A)
the applicant has exhausted the remedies available in the
courts of the State. . . .
Generally, the exhaustion prerequisite is not satisfied unless all
claims asserted have been presented by “invoking one complete round
of the State’s established appellate review process.”

Id. at 845.

This means that each claim must have been “properly presented” as
a federal constitutional issue “to the highest state court, either
by direct review of the conviction or in a post-conviction attack.”
4

Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir.
1994).

It has long been established that a § 2254 petition

containing claims which have not been exhausted in state court must
be dismissed.

See Rose v. Lundy, 455 U.S. 509, 513-20 (1982).

Mr. Gant admits that he has not exhausted any of the four claims
raised in his federal petition.

A comparison of the claims presented

in his federal petition with those raised on his direct and collateral
appeals in state court confirms that they were not among the issues
raised in the state courts.
Mr. Gant attempts to excuse his failure to exhaust his claims
in the state courts by alleging that they all rely on an unspecified
“intervening change in Kansas law that applies retroactively” to his
case and that they were not raised due to ineffective assistance of
counsel.

However, allegations that a state inmate is entitled to

habeas relief due to an intervening change in the law and due to
ineffective assistance of counsel are claims that themselves must
have been fully and properly exhausted in state court prior to their
being raised in a federal habeas corpus petition.

The court

concludes from the face of the petition that the claims raised in
this action have not been exhausted in state court.

STATUTE OF LIMITATIONS
The statute of limitations for filing a federal habeas corpus
petition is set forth in 28 U.S.C. § 2244(d)(1), as follows:
5

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.
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

post-conviction or other collateral review with respect to the
pertinent judgment or claim . . . .”

28 U.S.C. § 2244(d)(2).

It appears from the procedural history set forth by petitioner
that,

without

time-barred.

additional

tolling,

his

federal

petition

is

Applying the statutory provisions to the facts of this

case, petitioner’s convictions “became final” for limitations
purposes on May 1, 2009.5

The statute of limitations began to run

on this date, and ran uninterrupted for approximately 9 months and
3 days.

It was then statutorily tolled during the pendency of

petitioner’s “properly filed” 60-1507 motion, which was from the date
that motion was filed (February 4, 2010) through the date the KSC
denied the petition for review (February 19, 2013).

The statute of

limitations began running again on February 20, 2013, with less than
5
On January 30, 2009, the Kansas Supreme Court denied review on petitioner’s
direct appeal. Mr. Gant then had 90 days to file a petition for writ of certiorari
in the United States Supreme Court. Because he did not seek review in the U.S.
Supreme Court, his conviction became final 90 days later, on May 1, 2009. See
Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001).

6

three months remaining in the one-year period and ran uninterrupted
until it expired on or about May 17, 2013.

Petitioner did not file

his federal application until months later.

In short, unless Mr.

Gant can allege facts showing that he is entitled to either additional
statutory or equitable tolling, his federal petition must be
dismissed as time-barred.
A litigant claiming entitlement to equitable tolling bears the
burden of establishing two elements: (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstances
stood in his way.”

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);

see Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000), cert.
denied, 531 U.S. 1194 (2001)(Equitable tolling “is only available
when an inmate diligently pursues his claims and demonstrates that
the failure to timely file was caused by extraordinary circumstances
beyond his control.”).

In the habeas corpus context, equitable

tolling has been limited to “rare and exceptional circumstances.”
Gibson, 232 F.3d at 800.

The Tenth Circuit has stated that equitable

tolling “would be appropriate, for example, when a prisoner is
actually

innocent,

uncontrollable

when

an

adversary’s

circumstance--prevents

a

conduct--or

prisoner

from

other
timely

filing, or when a prisoner actively pursues judicial remedies but
files a defective pleading during the statutory period.”

Id.

(internal citations omitted); Burger v. Scott, 317 F.3d 1133, 1141
(10th Cir. 2003).

“Simple excusable neglect is not sufficient.”
7

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).
Petitioner is given time to show cause why this petition for
writ of habeas corpus should not be dismissed for failure to fully
exhaust state court remedies on his claims and as time-barred.

If

he fails to show good cause within the prescribed time, this action
may be dismissed without further notice.6
IT IS THEREFORE BY THE COURT ORDERED that petitioner is granted
thirty (30) days in which to show cause why this petition for writ
of habeas corpus should not be dismissed on account of petitioner’s
failure to exhaust state court remedies and as time-barred under 28
U.S.C. § 2244(d)(1).
IT IS SO ORDERED.
Dated this 24th day of October, 2013, at Topeka, Kansas.

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

6
Petitioner may want to consider immediately filing a petition in state court
that raises his unexhausted claims.

8