Elliott (ID 44808) v. Roberts
MEMORANDUM AND ORDER ENTERED: Petitioner's motion 5 to appoint counsel is denied. Respondent is granted to and including February 14, 2014, to file a response addressing the timeliness of this petition. Petitioner is granted twenty (20) days following receipt of the response to file a reply. Signed by Senior District Judge Sam A. Crow on 1/15/2014. (Mailed to pro se party Billie Elliott by regular mail.) (Attachments: #(1) Kansas Court of Appeals Docket Sheet) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 13-3206-SAC
RAY ROBERTS, et al.,
MEMORANDUM AND ORDER
This matter comes before the court on a petition for habeas corpus
filed pursuant to 28 U.S.C. § 2254. Petitioner has submitted an amended
petition as directed by the court.
The factual background of this matter was summarized by the
Kansas Court of Appeals as follows:
In 1997, a jury convicted Elliott of one count of aggravated
criminal sodomy and one count of indecent liberties. He was
sentenced to prison for a term of 576 months. A panel of
this court affirmed Elliott’s convictions and sentence on
direct appeal. See State v. Elliott, …unpublished opinion
filed August 20, 1999 (Kan.App.) rev. denied 268 Kan. 890
In his first K.S.A. 60-1507 motion, filed in 2000, Elliott
argued that he received ineffective assistance of trial
counsel. The district court summarily denied the motion.
But on appeal, a panel of this court remanded the motion
to the district court for an evidentiary hearing. On remand,
the district court determined that Elliott was not entitled
to relief. Subsequently, this court affirmed that district
court’s decision. See Elliott v. State, … 2004 WL 556756
(Kan.App.2004)(unpublished opinion), rev. denied 278 Kan.
Elliott filed a second K.S.A. 60-1507 motion in 2005. Once
again, he argued ineffective assistance of trial counsel.
The district court summarily denied the motion because it
was untimely and successive. On appeal, this court affirmed
the district court’s summary denial of the motion. See
On April 27, 2011, Elliott filed a third K.S.A. 60-1507
motion that is the subject of his current appeal. In this
motion, Elliott argued a violation of his right to a speedy
trial. […] the district court entered a typed order on July
6, 2011, which clearly states: “Movant[‘]s 1507 claims are
dismissed as they are out of time and successive and do not
allege any grounds for a showing of manifest injustice.”
On July 15, 2011, the district court granted Elliott’s
motion for leave to appeal out of time. Elliott v. State,
296 P.3d 1139 (Table), 2013 WL 1010344 (Kan.App.), rev.
Motion to appoint counsel
Petitioner moves for the appointment of counsel, stating
that he is unable to afford counsel, that his incarceration
limits his ability to conduct research and investigation, and
that a trial in this matter will involve conflicting testimony.
There is no right to the appointment of counsel in a federal
habeas corpus action. Pennsylvania v. Finley, 481 U.S. 551, 555
(1987). Rather, the decision whether to appoint counsel is in
Corrections State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir.
1994). See also 18 U.S. C. § 3006A(a)(2)(B)(the court may appoint
counsel in action under § 2254 where “the interests of justice
The records of the Kansas Court of Appeals show that petitioner’s motion to file
a petition for review out of time was denied on August 10, 2007, and his motion to
reconsider was denied on August 28, 2007. The mandate was issued on August 29, 2007.
See attached docket.
In considering whether to appoint counsel in a civil matter,
the court should consider “the litigant’s claims, the nature of
the factual issues raised in the claims, the litigant’s ability
to present his claims, and the complexity of the legal issues
raised by the claims.” Long v. Shillinger, 927 F.2d 525, 526-27
(10th Cir. 1991).
In the present case, the court finds no basis to appoint
counsel. The petitioner appears to be capable of presenting his
arguments, and the issues to be determined, as discussed below,
do not appear to be unusually complicated.2 The court therefore
denies the motion but will reconsider this ruling should this
matter proceed to an evidentiary hearing.
The federal courts are to review habeas corpus petitions promptly
and must summarily dismiss a petition “[i]f it plainly appears from
the petition and any attached exhibits that the petitioner is not
entitled to relief.” Rule 4, Rules Governing Section 2254 Cases. A
district court is “permitted, but not obliged, to consider, sua
sponte, the timeliness of a state prisoner’s habeas petition.” Day
v. McDonough, 547 U.S. 198, 209 (2006).
But “before acting on its
own initiative, a court must accord the parties fair notice and an
opportunity to present their positions.” Day, 547 at 210. Finally,
when a district court sua sponte considers the timeliness of a
The court notes that petitioner has access to Legal Services for Prisoners, which
offers legal assistance to Kansas prisoners seeking post-conviction relief.
significantly prejudiced…and determine whether the interest of
justice would be better served by addressing the merits or by
dismissing the petition as time barred.” Id.
This matter is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA). The AEDPA imposes a one-year limitation period
for filing a petition for habeas corpus. Rhine v. Boone, 182 F.3d 1153,
1154 (10th Cir. 1999).
The limitation period runs from the latest of:
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 limitation period is tolled during the pendency of a properly
filed state court postconviction motion. 28 U.S.C. § 2244(d)(2). In
addition, the limitation period is subject to equitable tolling “in
rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799,
808 (10th Cir. 2000). Such tolling is appropriate only if the petitioner
demonstrates both “that he has been pursuing his rights diligently”
preventing him from timely filing the petition. Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005). Otherwise, petitioner can avoid the time
bar of the one-year period only by showing his actual innocence.
McQuiggin v. Perkins, ___ U.S. ___, ___, 133 S.Ct. 1924, 1931 (2013).
A review of the procedural history of petitioner’s appeal and
post-conviction remedies, as summarized by the Kansas Court of
Appeals, suggests this matter was not filed within the limitation
period. While it is unclear from the summary exactly when the motions
under 1507 were filed, tolling the limitation period, it seems clear
that no action was pending between 2007 and the filing of petitioner’s
third 1507 motion in 2011. Thus, the limitation period appears to have
expired no later than 2008.
Accordingly, the court is considering the dismissal of this
matter unless the submissions of the parties demonstrate either that
additional tolling occurred or that extraordinary circumstances exist
which warrant equitable tolling.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
appoint counsel (Doc. 5) is denied.
IT IS FURTHER ORDERED respondent is granted to and including
February 14, 2014, to file a response addressing the timeliness of
IT IS FURTHER ORDERED petitioner is granted twenty (20) days
following receipt of the response to file a reply.
A copy of this order shall be transmitted to the parties.
IT IS SO ORDERED.
This 15th day of January, 2014, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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