Floyd (ID 78743) v. Cline

Filing 4

MEMORANDUM AND ORDER ENTERED: The habeas corpus petition filed pursuant to 28 U.S.C. 2254 is denied as time barred. Signed by Senior District Judge Sam A. Crow on 09/26/14. Mailed to pro se party Antonio Floyd by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTONIO FLOYD,
Petitioner,
v.

CASE NO.

14-3012-SAC

SAM CLINE,
Respondent.
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was filed
pursuant

to

28

U.S.C.

§

2254

by

Mr.

Floyd,

challenge his Kansas criminal convictions.

who

seeks

to

The court screened

the filings, and on February 7, 2014, entered an order with
tentative

findings

that

the

petition

was

filed

applicable statute of limitations had expired.

after

the

Petitioner was

required to show cause why this action should not be dismissed
as time barred.

Mr. Floyd has filed his response (Doc. 3).

Having considered all materials in the file, the court concludes
that this action is time barred and must be dismissed.1

ADDITIONAL TOLLING

1

The court is mindful that this is petitioner’s first
petition, and “[d]ismissal of a first federal habeas
particularly serious matter.” Case v. Hatch, 731 F.3d 1015,
2013)(alteration in original)(quoting House v. Bell, 547
(2006))(internal quotation marks omitted).
1

federal habeas
petition is a
1036 (10th Cir.
U.S. 518, 539

Petitioner
history

and

candidly

relevant

acknowledges

dates

screening order are correct.2

set

forth

that
in

the

the

procedural

court’s

prior

However, he contends that he is

entitled to a much later start date for the federal statute of
limitations than that determined by the court.
order, the court held

that

the

statute of

In its prior

limitations began

running in this case on May 14, 2006, which was the date Mr.
Floyd’s conviction became “final” as that term is used in 28
U.S.C.

§

2244(d)(1)(A).3

Petitioner

asks

the

court

to

hold

instead that his start date was “the final date he exhausted his
state post-conviction remedies, being May 26, 2013.”

As support

for this argument, he alleges that he “toiled” to prepare his
state post-conviction motion during “the one year allotted under

2

Mr. Floyd was convicted in Douglas County District Court of Attempted
First Degree Murder, Attempted Sexual Battery, and Aggravated Burglary and
was sentenced in 2003 to 620 months in prison. He directly appealed, and the
Kansas Court of Appeals (KCA) affirmed these convictions.
State v. Floyd,
120 P.3d 808 (Kan.App. 2005).
The Kansas Supreme Court (KSC) denied review
on Feb. 14, 2006.
On February 15, 2007, petitioner filed a state postconviction motion pursuant to K.S.A. 60-1507, which was denied. He appealed
to the KCA, which affirmed. The KSC denied review on February 25, 2013.
3

After the KSC denied his petition for review, Mr. Floyd had ninety days
to file a petition for writ of certiorari in the United States Supreme Court.
He did not seek that review.
Thus, for purposes of § 2244(d)(1)(A), his
conviction became “final” on May 14, 2006, which was ninety days after the
date the KSC entered its order. The statute of limitations began to run on
that date, and ran uninterrupted for 276 days.
The court now corrects its
own finding and holds that it began to run on the next day so that it ran
uninterrupted for 275 days instead.
It was then statutorily tolled during
petitioner’s 60-1507 proceedings, which were pending from February 15, 2007,
through February 25, 2013. The statute of limitations began running again on
February 26, 2013, with approximately 90 days remaining.
It then ran
uninterrupted until it expired on May 27, 2013.
Petitioner executed his
federal petition on January 14, 2014, which was several months after the oneyear limitations period expired.
2

state

law”

and

contends

that

the

federal

limitations

period

should therefore “be tolled during the entire time he ha(d) to
file his state post-conviction remedies.”

He adds that he had

“no control over how long court clerks” and attorneys took to
“actually

get

an

appeal

docketed”

and

that

preparation

for

appeal “can easily run the full one year” leaving no time “to
file any federal appeal if the full time spent in state courts
are not tolled.”
Petitioner is not entitled to the different start date he
seeks.

As noted in the court’s prior order, statutory tolling

is only available under 28 U.S.C. § 2244(d)(2) for the time a
properly

filed

“pending”.4

state

post-conviction

action

is

actually

This means that statutory tolling begins on the date

a post-conviction motion is filed and ends on the date that
state proceedings on the motion are concluded.5

The statute

makes no provision for additional tolling for the time during
which a state prisoner was “toiling” on his state court remedies

4

Section 2244(d)(2) provides:
The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.

5

An application is “pending” until it has achieved final resolution
through the state’s post-conviction procedures.
See Carey v. Safford, 536
U.S.
214,
219-20
(2002);
Lawrence
v.
Florida,
549
U.S.
327,
332
(2007)(holding that limitations period begins to run immediately upon the
conclusion of state post-conviction review and is not tolled during the 90day period in which a writ of certiorari may be sought from the Supreme
Court).
3

but had no state post-conviction motion pending, and the court
is aware of no other controlling legal authority that allows for
this additional tolling.

Thus, petitioner’s assertion that the

federal one-year statute of limitations should be tolled during
all the time that the state’s one-year limitations period for
60-1507 motions was running is found to have no legal basis, and
the six months
application

he allegedly

prior

to

its

spent preparing his state court

filing

is

not

tolled.

In

accord:

Shinton v. Wilkinson, 2014 WL 289027 (W.D. Okla. Jan. 27, 2014),
COA

denied,

2014

WL

3892975

(10th

Cir.,

Aug.

7,

2014)(“Petitioner’s mistaken belief that he had one year from
the completion of state court proceedings to file a federal
habeas corpus petition, and that the six months spent preparing
his state court application did not count, is simply wrong.”).
In

the

court’s

prior

order,

petitioner

was

accorded

the

appropriate amount of statutory tolling, which was from the time
his state post-conviction motion was filed on February 15, 2007,
to the time the post-conviction proceedings were concluded on
February 25, 2013.
Under certain circumstances, a start date applies that is
later than the date the conviction “became final.”6

6

For example,

The one-year limitations period begins to run from the latest of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
4

under

subsections

(C)

and

(D)

of

28

U.S.C.

§

2244(d)(1),

a

petitioner is entitled to a later start date when there has been
an intervening, retroactive change in Supreme Court law, or the
discovery of a new factual predicate for a claim.

However, it

does not appear that petitioner could claim a later trigger date
under either of these provisions.

On the other hand, subsection

(B) of § 2244(d)(1) allows the limitation period to begin as of
“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

allegations
transcript

by
that

of

his

such
the

State
state

60-1507

action.”
court

Id.

clerk

hearing

and

failed
that

Petitioner’s
to

prison

supply

a

officials

confiscated his legal materials might liberally be construed as
asserting

state-created

impediments.

Even

if

so

construed,

these allegations lack the requisite specificity.

(B) 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;
(C) 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
(D) 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).
5

Petitioner’s
legal

materials

allegations
were

and

confiscated

exhibits
by

indicate

prison

that

officials

his

around

March 23, 2012, along with other non-legal property and have
been

withheld

since

that

time

pending

investigation.

These

allegations are not sufficient to show an actual impediment.
Section 2244(d)(1)(B) makes clear that the alleged impediment
must prevent a prisoner from filing his 2254 petition.

Lloyd v.

Van Natta, 296 F.3d 630, 633 (7th Cir. 2002), cert. denied, 537
U.S.

1121

(2003).

confiscated
terms.

Mr.

property

Since

he

Floyd

and

does

only
not

does

not

refers

describe

identify

to

it

the

in

any
very

property

of

the

general

it

is

not

readily apparent that his lack of access to any confiscated item
actually prevented him from filing a timely 2254 petition.
Petitioner’s allegation that the county clerk’s failure to
provide

a

transcript

of

his

hearing7

60-1507

impeded

his

submission of a timely 2254 petition is similarly inadequate.
See Freeman v. Zavaras, 467 Fed.Appx. 770, 774 (10th Cir.), cert.
denied, 133 S.Ct. 581 (2012)(petitioner’s allegations that his
appellate attorneys refused to provide him with documents from
his

case

district

file
court

despite
denied

several
his

requests

requests

to

and

that

borrow

the

state

his

trial

transcripts not shown to amount to unconstitutional state action

7

Petitioner does not even show that such a transcript existed, and his
exhibits indicate otherwise.
6

or to have impeded him from filing a timely habeas petition and
therefore

failed

to

establish

that

§

2244(d)(1)(B)

applied).

There is no requirement that the transcript of a 60-1507 hearing
be supplied by a petitioner in order to file a 2254 petition.
Thus, the court is presented with no factual basis for finding
that either the confiscation of unspecified legal materials or
the county clerk’s inaction actually impeded petitioner’s timely
filing his 2254 petition.
(10th

Cir.),

cert.

See Miller v. Marr, 141 F.3d 976, 978

denied,

525

U.S.

891

(1998)(rejecting

§

2244(d)(1)(B) claim of impediment to legal materials because of
lack of specificity as to alleged lack of access; Gauthier v.
Higgins, 175 Fed.Appx. 174, 175 (10th Cir.), cert. denied, 549
U.S. 1003 (2006)(finding petitioner’s alleged inability to pay
for the transcripts did not constitute an “impediment to filing”
a 2254 petition within the meaning of § 2244(d)(1)(B)); Lloyd,
296

F.3d

at

634

(“equitable

tolling

does

not

excuse

[the

petitioner’s] late filing simply because he was unable to obtain
a

complete

trial

transcript

before

he

filed

his

§

2254

application.”); Donovan v. Maine, 276 F.3d 87, 93 (1st Cir.
2002)(“the state court’s delay in furnishing the petitioner with
the

transcript

tolling.”);

did

Jihad

v.

not

establish

Hvass,

267

a
F.3d

basis
803,

for
806

equitable
(8th

Cir.

2001)(“lack of access to a trial transcript does not preclude a
petitioner

from

commencing

post-conviction
7

proceedings

and

therefore does not warrant equitable tolling.”).
Furthermore, petitioner does not provide a date on which
these alleged impediments were removed and implies they were
never

removed.

Thus

it

appears

that

the

very

detailed

and

satisfactory 2254 petition he eventually managed to file was
prepared in spite of these circumstances.

The court concludes

that Mr. Floyd is not entitled to a different start date based
on a liberal construction of his

allegations

as asserting a

state-created impediment under § 2244(d)(1)(B).

EQUITABLE TOLLING
Petitioner contends that if the court rejects his argument
for additional tolling while he prepared his state petition, it
should

find

that

he

is

entitled

to

equitable

tolling.

In

support of this argument, he claims that he diligently sought to
file his “federal appeal”8 in a timely manner but “was prevented
from

doing

control.”

so

due

to

extraordinary

circumstances

beyond

his

He sets forth the following circumstances, which he

claims are extraordinary, were beyond his control, and prevented
the timely filing of his 2254 petition: (1) there was a “six

8

This federal habeas court does not sit as a super appeals court for
Kansas criminal convictions, which are finally appealable from the KSC to the
U.S. Supreme Court. Petitioner makes a common error by referring to his 2254
petition as his “federal appeal.”
To avoid some confusion, the court
sometimes substitutes “2254 petition” for petitioner’s references to his
“federal appeal.”
8

month
record

overlap”
for

during

appellate

which

appellate

issues,

sought

attorneys

reviewed

records,

and

the

prepared

briefs; (2) the state appellate court’s opinion affirming the
denial of his post-conviction motion was unpublished so that he
“had no way of knowing” his federal habeas grounds and had to
seek and obtain the unpublished opinion; (3)

he

after

obtain

the

state

court’s

final

decision

“to

needed time
records

necessary to file his federal habeas petition;” (4) he made two
unsuccessful

attempts

to

obtain

from

the

county

clerk

a

transcript of the evidentiary hearing on his 60-1507 motion and
had to file his 2254 petition “with vague arguments;”9 (5) on or
around

March

13,

2012,

“all

of

his

legal

materials

were

confiscated” due to “intentional misconduct.”
The Supreme Court has affirmed that § 2244(d)’s limitations
period “is subject to equitable tolling in appropriate cases.”
Holland v. Florida, 560 U.S. 631, 645 (2010).

“But, in doing

so, the Court also affirmed that a habeas petitioner seeking
equitable tolling must clear a high hurdle.”
387

9

Fed.Appx.

858,

860

(10th

Cir.

2010).

Hallcy v. Milyard,
As

Mr.

Floyd

was

Petitioner alleges that in March 2013, he wrote to the “District Court
Clerk” requesting “a copy of the District Court’s opinion or the transcript
of the hearing held in the district court” so that “he could appeal the State
Appellate court’s opinion to the Federal District Court.” Petitioner’s Exh.
A (Doc. 3-1 at 1).
He alleges that the Clerk failed to answer his first
inquiry, so he wrote a second letter over nine months later.
See
Petitioner’s Exh. B (Doc. 3-1 at 2). The clerk stamped his second letter as
filed on January 8, 2014; responded on the letter that “No transcripts have
been added to the case since 2011;” and referred him to the court reporter.
9

previously informed, a litigant seeking equitable tolling bears
the burden of establishing “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstances
stood in his way and prevented timely filing.”
U.S.

at

649

(citing

Pace

v.

DiGuglielmo,

544

Holland, 560
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

extraordinary

the

failure

circumstances

to

timely

beyond

his

file

was

caused

control.”);

by

Clark

v.

Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006), cert. denied, 551
U.S.

1149

tolling

(2007).
has

been

circumstances.”
2000);

Yang

In

v.

the

habeas

limited

to

corpus

context,

“rare

and

equitable

exceptional

Gibson v. Klinger, 232 F.3d 799, 800 (10th Cir.
Archuleta,

525

F.3d

925,

929

(10th

Cir.

2008)(“‘Equitable tolling is a rare remedy to be applied in
unusual circumstances, not a cure-all for an entirely common
state of affairs’”)(quoting Wallace v. Kato, 549 U.S. 384, 396
(2007)).10

In order to demonstrate that he pursued his claims

diligently, the petitioner must “allege with specificity ‘the

10

The Tenth Circuit has stated that equitable tolling “would be
appropriate, for example, when a prisoner is actually innocent, when an
adversary’s conduct—or other uncontrollable circumstance—prevents a prisoner
from timely filing, or when a prisoner actively pursues judicial remedies but
files a defective pleading during the statutory period.” Gibson, 232 F.3d at
808 (internal citations omitted); Burger v. Scott, 317 F.3d 1133, 1141 (10th
Cir. 2003).
10

steps he took to diligently pursue his federal claims.’”

Yang,

525 F.3d at 930 (quoting Miller, 141 F.3d at 978).
The first three circumstances described by petitioner are
not at all extraordinary and are found not to entitle him to
equitable

tolling

for

this

reason.

Preparation

of

state

criminal or collateral appeals normally takes time, and state
appellate court opinions are often unpublished.

Furthermore,

petitioner was given tolling credit in the court’s calculations
for the times during which appellate attorneys might have been
preparing

an

appeal

on

his

behalf

because

this

would

have

occurred during the pendency of either his criminal proceedings
and direct appeals or his collateral proceedings.

The third

circumstance is neither rare nor exceptional and lacks substance
for the reason that a federal habeas corpus petitioner is not
required to submit records with his 2254 petition.

Petitioner

does not indicate what records he sought or how not having them
prevented his timely filing.
lacks factual substance.

The second circumstance likewise

Petitioner does not reveal how long it

took to obtain a copy of the unpublished court opinion or why he
did not receive or request a copy from his attorney.

Nor does

he explain how not having it prevented him from knowing the
grounds for challenging his convictions.
With

respect

to

the

fourth

circumstance

relied

upon

by

petitioner, the court already found herein that his allegations
11

regarding his failed attempts to obtain a transcript of his 601507 hearing are not shown to have prevented him from filing a
timely 2254 petition.

This circumstance

is not grounds for

equitable tolling for the same reason.
The
serious

court

has

allegation

carefully

that

he

considered

is

entitled

to

petitioner’s
equitable

because all his legal materials were confiscated.
action

by

prison

officials

that

involves

more

tolling

Obstructive

the

“complete

confiscation” of a petitioner’s legal materials has been found
to constitute an extraordinary circumstance warranting equitable
tolling.

See United States v. Gabaldon, 522 F.3d 1121, 1126

(10th Cir. 2008).
burden

to

show

At the same time, “an inmate bears a strong
specific

facts

to

support

extraordinary circumstances and due diligence.”
at

928.

The

court

finds

that

petitioner

his

claim

of

Yang, 525 F.3d
has

not

alleged

specific facts showing that the confiscation of legal materials
in his case in March 2012 prevented his timely filing of a 2254
petition by the deadline of May 27, 2013.

He alleges in his

response that all his legal materials were confiscated by the
“E.A.I.” and that this was “everything that he had ever gotten
from the court and his lawyers to work on his 2254 petition.”
He exhibits an Inmate Request to Staff Member (IR) dated March

12

30, 2012,11 in which he requested the return of his “address
books

and

legal

mail

and

personal

mail”

and

stated

that

he

needed his “legal work (1300) papers to work on my 2254 motion.”
Doc. 3-1 at 3.

He exhibits a second IR dated October 11, 2012

(Id. at 4) in which he asked for return of his “address books,
legal mail and some personal mail.”

He was informed at the

initial grievance level that the “items cannot be released due
to ongoing investigation.”12

Unlike in Gabaldon, Mr. Floyd does

not describe a single piece of legal mail or any other paper
among those confiscated that was patently necessary.13

Cf. Pfeil

v. Everett, 9 Fed.Appx. 973 (10th Cir.), cert. denied, 534 U.S.
11

Petitioner exhibits an Inmate Request to Staff Member (IR) dated March
30, 2012, in which he stated that that his property had been held for a week.
Doc. 3-1 at 3. This exhibit indicates that the confiscation occurred around
March 23, 2012.
12

Petitioner does not reveal the disposition of any administrative
appeals on his two IRs. The continued withholding of an inmate’s confiscated
legal materials by prison officials in the face of a credible claim by the
inmate that he cannot file a 2254 petition without them would warrant a
responsive pleading in a denial of access complaint. Petitioner’s exhibited
IRs, like his petition, did not reveal what particular papers out of 1300 he
needed.
In any event, in this habeas case petitioner bears the burden of
alleging specific facts showing his entitlement to equitable tolling
including that he acted with diligence and that the timely filing of his 2254
was actually impeded.
13

Petitioner’s Attachment F (Doc. 3-1 at 5) is a letter he wrote while at
the Hutchinson Correctional Facility addressed to Warden McKune at Lansing
Correctional Facility, which is stamped as received on September 25, 2013.
This is more than 11 months after the last inquiry he exhibits and nearly 4
months after the federal limitations period had already expired.
In this
letter, petitioner stated that his confiscated property included his
transcripts and “legal mail”. He also stated that his property had been held
for 18 months, and claimed that he had repeatedly asked for its return, that
he believed that the property had been lost, and that without the property he
could not work on his 2254 petition. The “Grievance/Property Claims Officer”
responded the next day that the property was “currently in evidence with
EAI,” still “pending the outcome of an investigation, and can remain there
for up to five years on that status.” Id. at 6.
13

1032 (2001).

His failure to adequately identify any necessary

documents among his confiscated legal property leaves the court
without the requisite plausible explanation as to how lack of
access to his withheld papers actually prevented him from filing
a timely 2254 petition.

Cf. Valverde v. Stinson, 224 F.3d 129,

133 (2nd Cir. 2000)(“person is plainly ‘prevented’ from filing a
pleading . . . if he is deprived of the sole copy of that
pleading, something that the petitioner asserts happened to him
here.”).
own

In contrast, the petitioner in Gabaldon submitted his

statement

that

his

confiscated

legal

work

contained

his

“motion 2255, attached memorandum, case law, transcripts, jury
instructions, indictment, and relevant documents” together with
a memorandum from a prison official stating that [h]is property
contained documents that were needed for his court deadline,
Motion 2255.”

Mr. Floyd’s allegations of lack of access to his

confiscated property are more akin to general allegations of no
access to legal resources or a law library, which without more
particularity have frequently been recognized as insufficient to
justify equitable tolling.

See Miller, 141 F.3d at 978 (“It is

not enough to say that the [prison] lacked all relevant statutes
and case law or that the procedure to request specific materials
was inadequate.”).
Cir.),

cert.

Parker v. Jones, 260 Fed.Appx. 81, 85 (10th

denied,

553

U.S.

1082

(2008)(inmate’s

vague

allegations that he was in lockdown and had no access to legal
14

materials

will

not

justify

equitably

tolling

the

limitations

period); Everson v. Kansas Dept. of Corrections, 232 Fed.Appx.
815, 817 (10th Cir. 2007)(Petitioner’s failure to allege specific
facts as to how lack of access to legal resources impeded his
ability to timely file a claim rendered it insufficient to show
entitlement to equitable tolling); Abel v. Kansas, 187 Fed.Appx.
867 (10th Cir. 2006); see Kerchee v. Jones, 2011 WL 305847 (W.D.
Okla.

2011),

appeal

dism’d,

428

Fed.Appx.

851

(10th

Cir.

2011)(petitioner claiming that confiscation of his legal papers
and

mail

at

the

prison

interfered

with

his

ability

to

file

timely motion was an impediment that required petitioner to show
the specific steps he has taken to pursue his claims.).
The 2254 petition that Mr. Floyd eventually managed to file
contains clear details as to the procedural history of his case
together with case citations and plainly sets forth the issues
raised in the state courts on direct appeal as well as in postconviction proceedings.
on

which

he

seeks

It also sets forth the twelve grounds

federal

habeas

corpus

review

along

with

detailed supporting facts including legal theories and assertion
of constitutional violations.

Mr. Floyd’s allegations offer no

clue as to why he was able to prepare and file his very adequate
2254 petition without his confiscated property after, but not
before, the limitations period expired.
The court further finds petitioner does not show that he
15

diligently

sought

the

return

of

the

particular

confiscated

papers that he deemed necessary from prison officials or that he
made

any

attempt

channels.

As

to

obtain

noted,

his

necessary
exhibits

papers

indicate

through
that

other

prior

to

expiration of the limitations period, he only sought return of
his papers in March 2012 and six months later in October 2012.
The limitations period did not expire until May 27, 2013.
2254 petition can

only

already

throughout

litigated

contain

issues that

the

state

A

the prisoner has

trial

and

appellate

courts, and a pro se petitioner is not required to include legal
arguments and citations.
explain

why

he

could

Mr. Floyd alleges no facts tending to
not,

with

reasonable

diligence,

have

prepared and submitted a 2254 petition before the statute of
limitations expired.

See Coppage v. McKune, 534 F.3d 1279, 1282

(10th Cir. 2008)(no extraordinary circumstances when prisoner had
50 days to file a habeas petition that required limited research
because he could raise only issues previously submitted in state
court.).

Petitioner’s

diligently

sought

to

allegations

advance

his

that
appeal

he

“constantly

through

the

and

state

courts” and “thereafter sought to obtain the necessary records
that would allow him to present an intelligible” 2254 petition
are conclusory.

They do not amount to a description of steps he

took to diligently pursue his federal claims during the 275 days
in 2006 and 2007 before filing his 60-1507 motion or the 90 days
16

following denial of that motion in February 2013.

Miller, 141

F.3d at 978 (“In the final analysis, [petitioner must show] the
steps he took to diligently pursue his federal claims.”).

In

short, Mr. Floyd has failed to allege specific facts showing
that the confiscation of his papers in March 2012, and not his
own lack of diligence, caused him to file his 2254 petition over
seven months late.14
In

its

prior

order,

the

court

construed

petitioner’s

exhibit of his attorney’s letter attached to the petition as
petitioner’s

allegation

that

filing a late 2254 petition.

attorney

error

resulted

in

his

In this letter the attorney that

had represented Mr. Floyd during his state collateral appeal
proceedings advised him that the KSC had denied review and that
the state proceedings as well as her representation had come to
an end.15

In addition, counsel stated that Mr. Floyd had one

year

the

from

petition.
reasons

In
why

entitlement

date
its
these

to

the
prior

KSC

denied

order,

allegations

equitable

tolling,

review

the
were

court

to

file

provided

inadequate

including

that

a

2254

several
to

show

complaints

14

Had Mr. Floyd included this alleged reason for the untimeliness of his
petition in paragraph 15 of his 2254 petition (“Timeliness of Petition”)
along with his reference to his attorney’s letter, he would have had the
opportunity to allege additional facts in support.
He was notified of the
standards regarding equitable tolling before he filed his response.
15

This attorney was not representing Mr. Floyd on his 2254 petition and
did not bear responsibility for filing a timely 2254 petition on his behalf.
17

regarding a state inmate’s post-conviction counsel generally are
not

grounds

authorities

for

equitable

holding

that

tolling.

a

The

petitioner’s

court

reliance

also
on

cited

attorney

“miscalculation” regarding the statute of limitations period in
§

2244(d)(1)

including

is

the

insufficient

mistaken

to

belief

warrant

that

equitable

the

one-year

limitation

period was reset after a state collateral appeal.
Jackson

v.

Kaiser,

2000)(equitable

229

tolling

F.3d
not

1163,

warranted

*3

fn.3

even

tolling,

See e.g.,
(10th

when

Cir.

attorneys

clearly err by misleading their clients about AEDPA’s statute of
limitations); Reynolds v. Hines, 55 Fed.Appx. 512 (10th Cir.
2003)(habeas petitioner’s attorney’s incorrect advice regarding
when the limitations period began to run was not the type of
extraordinary circumstance entitling the petitioner to equitable
tolling); Rouse v. Lee, 339 F.3d 238, 248–49 (4th Cir. 2003),
cert. denied, 541 U.S. 905 (2004).

In his response, Mr. Floyd

does not allege additional facts to bolster this claim or even
reassert it.
The court emphasizes that it does not hold that attorney
error can never support equitable tolling.

The United States

Supreme Court held in Holland v. Florida that “unprofessional
attorney

conduct

may,

in

certain

‘egregious’ and can be ‘extraordinary.’”
651.

The

“extraordinary

circumstances
18

circumstances,

prove

Holland, 560 U.S. at
at

issue”

in

Holland

involved an attorney’s failure to satisfy professional standards
of care.”

Id. at 649.

However, the Supreme Court also plainly

held that “the circumstances of a case must be ‘extraordinary’
before equitable tolling can be applied:”
We have previously held that “a garden variety claim
of
excusable
neglect,”
such
as
a
simple
“miscalculation” that leads a lawyer to miss a filing
deadline, does not warrant equitable tolling. But the
case before us does not involve, and we are not
considering, a “garden variety claim” of attorney
negligence.
Rather, the facts of this case present
far more serious instances of attorney misconduct. . .
Id.

at

651-52.

“sufficiently

The

Tenth

egregious

Circuit

misconduct

has

on

the

likewise
part

held

of

a

that

habeas

petitioner’s counsel may justify equitable tolling of the AEDPA
Fleming v. Evans, 481 F.3d 1249, 1256 (10th

limitations period.”
Cir.

2007)(finding

attorney

limitations

repeatedly

period

affirmatively

preparing a petition to be filed).

could

be

represented

tolled
that

he

when
was

In the instant case, no

facts alleged by petitioner suggest that the exhibited conduct
on the part of his collateral appeal attorney “constituted far
more than ‘garden variety’ or ‘excusable neglect.’”
560

U.S.

at

652.

Moreover,

as

petitioner

was

Holland,
informed,

“ignorance of the law generally and of the AEDPA time limit in
particular

will

not

excuse

incarcerated pro se prisoner.

untimely

filing,

even

for

an

Marsh, 223 F.3d at 1220; Miller,

141 F.3d at 978; Gibson, 232 F.3d at 808.
19

The court finds from

the facts alleged by Mr. Floyd that he delayed filing his 2254
petition until months after the federal statute of limitations
had

expired

in

his

case

mainly

because

he

and

his

state

collateral appeal counsel misunderstood the federal law as to
the

start

date

of

the

federal

statute

of

limitations.

Unfortunately for Mr. Floyd, neither a “garden variety claim” of
attorney negligence nor his own ignorance of the law is grounds
for

equitable

tolling.

The

court

concludes

that

this

circumstance is not “rare and exceptional” so as to require that
the

untimely

excused.

filing

of

this

§

2254

petition

be

equitably

Freeman, 467 Fed.Appx. at 777.

CERTIFICATE OF APPEALABILITY DENIED
Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, instructs that “[t]he district
court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”

Under 28 U.S.C.

§ 2253, the court may issue a certificate of appealability “only
if the applicant has made a substantial showing of the denial of
a constitutional right,” and the court “indicates which specific
issue

or

issues

satisfy

[that]

showing.”

A

petitioner

can

satisfy that standard by demonstrating that the issues raised
are debatable among jurists, that a court could resolve the
issues

differently,

or

that

the
20

questions

deserve

further

proceedings.

473

(2000)(citing

Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

In addition,

when

the

Slack

court’s

v.

McDaniel,

ruling

is

based

529

on

U.S.

procedural

grounds,

a

petitioner must demonstrate that “jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and

that jurists of reason

would find it debatable whether the district court was correct
in its procedural ruling.”

Slack, 529 U.S. at 484.

The court

finds that a certificate of appealability should not issue in
this case.

Nothing suggests that the court’s ruling resulting

in the dismissal of this action as time barred is debatable or
incorrect.

A certificate of appealability shall be denied.

IT IS THEREFORE ORDERED that this habeas corpus petition
filed pursuant to 28 U.S.C. § 2254 is denied as time barred.
IT IS FURTHER ORDERED that a certificate of appealability
is denied.
IT IS SO ORDERED.
Dated this 26th day of September, 2014, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge
21