Bell (ID 79249) v. Kansas, State of et al

Filing 12

MEMORANDUM AND ORDER ENTERED: This petition for writ of habeas corpus filed pursuant to 28 U.S.C. 2254 is denied. A certificate of appealability is denied. Signed by Senior District Judge Sam A. Crow on 10/22/14. Mailed to pro se party J.D. Bell by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
J.D. BELL,
Petitioner,
v.

CASE NO.

14-3038-SAC

STATE OF KANSAS,
et al.,
Respondents.
MEMORANDUM AND ORDER
The court screened this pro se petition for writ of habeas
corpus

filed

Memorandum

pursuant

and

Order

to

28

(M&O)

appeared to be time barred.1

U.S.C.
finding

§

2254,
that

and

this

entered

a

application

Respondents were directed to file a

limited Response addressing the timeliness issue, and petitioner
was

granted

thirty

(30)

days

thereafter

to

file

his

Reply.

Respondents filed their Response (Doc. 10) together with the
state court records and request dismissal of this action based
1

As petitioner was informed, the statute of limitations for filing a
federal habeas corpus petition is set forth in 28 U.S.C. § 2244(d)(1), as
follows:
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).

1

on petitioner’s failure to timely file this application.

The

time in which petitioner was to reply has expired with nothing
further received from him.
In its prior M&O, the court took judicial notice of State
v.

Bell,

107

P.3d

1262,

2005

2005)(hereinafter Bell I);

WL

638089

(Kan.App.

Mar.

18,

State v. Bell, 185 P.3d 326, 2008 WL

2424493 (Kan.App. June 13, 2008)(hereinafter Bell II); State v.
Bell,

235

P.3d

1267,

2010

2010)(hereinafter Bell III).

WL

3063168

(Kan.App.

July

30,

The court then set forth tentative

facts regarding the procedural history of this case based upon
these opinions and the petition.

Mr. Bell has not objected to

or offered any facts to contradict these preliminary findings.
Nor has he contradicted the procedural history with citations to
the record set forth in the Response.

Having considered all the

materials in the file, the court finds the following relevant
facts and based thereon dismisses this action as time barred.
In 2003, petitioner was charged with first degree murder,
but

pled

guilty

and

was

convicted

in

the

District

Wyandotte County, Kansas, of second degree murder.

Court

of

At his plea

hearing, “the State indicated its expectation that Bell would
have

a

criminal-history

score

felony convictions at all.”

of

H,

meaning

Bell II

initially represented by Charles Ball.
subsequent

post-conviction

proceedings
2

at *1.

that

he

had

no

Mr. Bell was

Mr. Ball testified in
“that

he

questioned

defendant concerning his criminal history several times,” and
on each occasion, defendant indicated he had no prior
felonies and only one or two prior misdemeanor
convictions.
It turned out defendant had 19 prior
misdemeanors, including 3 person misdemeanors.
Bell I at *1.
“three

of

In the presentence investigation report (PSI),

Bell’s

misdemeanors

that

were

municipal

assault

convictions from Kansas City, Missouri” were grouped together as
one person felony conviction.2

Bell III at *1.

The report thus

assigned Mr. Bell a criminal history score of “D”.
After the PSI was filed and before sentencing Mr. Bell’s
new attorney Mr. Lubow objected to his criminal history score
and filed a motion to withdraw plea.

“Bell’s initial objection

to the criminal history score was a general one, essentially
requiring that the State prove the prior convictions.”
at *1.

Bell II

“[T]he State presented testimony from the presentence

investigator . . . that he had verified each of the three person
misdemeanors.”

Id.

After that testimony, Bell’s attorney at

the hearing “withdrew the objection to Bell’s criminal-history
score.”

Id.

The court denied Bell’s motion to withdraw his

guilty plea on January 9, 2004.
months in prison.

Petitioner was sentenced to 267

Mr. Bell appealed the denial of his motion to

2

K.S.A. 21-4711(a) generally provided that “3 misdemeanor convictions
are treated as 1 felony conviction; 3 person misdemeanors become 1 personfelony conviction.” Bell II at *1.

3

withdraw plea,3 and the Kansas Court of Appeals affirmed the
district court’s denial.

BELL I at *1.

The KCA rejected Bell’s

claim that “the trial court abused its discretion in refusing to
allow

a

withdrawal

ineffective

in

of

his

failing

history score.”

plea

because

to

accurately

trial

predict

counsel
his

was

criminal

Id.

On June 9, 2005, the Kansas Supreme Court

(KSC) denied review.

Respondents characterize these proceedings

as petitioner’s direct appeal.
On

September

7,

2005,

the

ninety-day

period

in

which

petitioner could have sought a Writ of Certiorari in the United
States Supreme Court expired.

Petitioner’s conviction became

“final” as that term is used in § 2244(d) on that date.
result,

the

required

to

one-year
file

a

September 7, 2005.

time

limit

federal

within

application

which

As a

petitioner

commenced

running

was
on

It ran unimpeded until Mr. Bell filed his

first state post-conviction motion on February 9, 2006, which
tolled the running.

The court now finds that 155 days of the

365-day time limit expired before petitioner filed his first
tolling-type motion.4
3

In this first state post-conviction motion, “Bell next objected to the
criminal history” by filing “his motion to correct an illegal sentence” in
the trial court. Bell II at *1; Bell I at *1. He claimed that his score was
incorrect and that the Missouri misdemeanor convictions for assault could not
be aggregated to form a felony.
4

In its prior M&O, the court noted that Mr. Bell had alleged that “in
the interim” on November 30, 2004, he filed a pro se motion to correct
illegal sentence pursuant to K.S.A. 22-3504, and that “the record does not
reflect that the District Court had previously made a ruling on this motion.”
4

Petitioner’s
correct

illegal

first

sentence,

September, 1, 2006.
KCA.5

post-conviction
was

denied

by

the

which

trial

was

to

court

on

One week later, petitioner appealed to the

The KCA affirmed the denial.6

November 4, 2008.

motion,

The KSC denied review on

Because these state collateral proceedings

However, the court also noted that Mr. Bell had attached transcript pages in
which the trial judge “specifically recounted that “on May 25th of ’05, the
defendant . . . filed a motion to dismiss his motion to correct an illegal
sentence and I granted the same.” Petition (Doc. 1-1) at 4. The state court
record provided by respondents indicates that on December 27, 2004,
petitioner filed a pro se “Motion to Dismiss the Motion for Illegal Sentence”
and on May 25, 2005, “Defendant’s Motion to Dismiss his Motion to Correct an
Illegal Sentence” was granted. Trial Transcript Vol. VI (Motion Hearing) at
13.
Based upon petitioner’s own exhibit and the state court records, the
court finds that this “interim” motion was ruled upon in May 2005.
Furthermore, the court finds that the pendency of this motion is of no import
here because it was filed and dismissed during the time that the limitations
period was already tolled for petitioner’s direct appeal.
5

On October 10, 2006, while petitioner’s direct appeal was pending and
he was represented by appellate counsel, he filed a pro se motion for relief
from judgment in the trial court. He claims that the record does not reflect
that this motion was “then addressed.”
Respondents contend that the state
district court lacked jurisdiction to consider this motion because the matter
was on appeal.
They also cite the trial judge’s recollection, stated at a
hearing in September 2011, that he lacked jurisdiction over this motion due
to the appeal and that he had considered Bell’s “motion for relief from
judgment” and “dismissed the same.”
Even if the trial court’s dismissal of
this motion is not an entry upon a state court docket, the record adequately
reflects that it was dismissed.
In any event, the court agrees with
respondents that this was not a “properly filed” state post-conviction
motion.
The court concludes that petitioner has not shown that he is
entitled to additional statutory tolling due to the pendency of this motion.
Moreover, even if the court accepted Bell’s allegation that this pro se
motion for relief from judgment was not “then addressed” and found it was a
proper motion, Bell’s own allegation that it was denied on April 21, 2009,
would entitle him to no more than 84 additional days of tolling.
Specifically, Mr. Bell alleges that after the conclusion of his first state
collateral appeal, he filed another pro se motion to Correct Illegal Sentence
and that “both motions” were summarily denied in a Memorandum Opinion dated
April 21, 2009. Since, the instant petition was filed over six months later,
this would not be sufficient to render it timely.
6

The court noted that Mr. Bell had “once again changed the basis for his
objection” to his criminal history score and rejected his claim “based on the
important rule that new issues may not be raised for the first time on
appeal.” Bell II at *1.

5

were no longer pending, the federal statute of limitations began
running again at that time.

It ran unimpeded for 84 days,7 so

that by this date a total of 239 limitation-period days had
expired.
On January 27, 2009, petitioner filed his second motion to
correct illegal sentence in the trial court, which was denied.
He appealed, the KCA affirmed, and the KSC denied review on
October 20, 2010.

The limitations period recommenced at this

time and ran unimpeded until it expired 126 days later, which
was on January 24, 2011.
Petitioner filed a third motion to correct illegal sentence
in the trial court on July 22, 2011, which he also appealed.
However, these proceedings had no tolling effect because the
statute of limitations expired before it was filed.

This court

takes judicial notice of the appellate court docket for Case No.
106901 showing that a Petition for Review was denied on August
29, 2013.

Six months later, the instant federal habeas corpus

petition was electronically filed on March 3, 2014.
The court concludes based upon the foregoing facts that Mr.
Bell’s federal application was filed after the one-year statute
of limitations had already expired in his case.
informed

in

the

prior

M&O

of

the

7

court’s

Mr. Bell was

finding

that

the

In its prior M&O, the court mistakenly found that 53 instead of 84 days
had elapsed.
Its correction is reflected here and in the date on which it
finds that the limitations period expired.
6

petition appeared to be untimely.

He was also informed of the

standards for establishing equitable tolling and that his only
other recourse would be to show his actual innocence.
petitioner did not take the opportunity to reply.

However,

Consequently,

petitioner has presented no facts indicating that he is entitled
to equitable tolling or that he is actually innocent, and the
court finds none in the record.

The court concludes that this

action must be dismissed for the reason that it was not filed
within the time limit set forth in 28 U.S.C. § 2244(d).
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.”
U.S.C.

§

2253,

appealability

the

“only

if

court
the

may

issue

applicant

a

has

Pursuant to 28
certificate

made

a

of

substantial

showing of the denial of a constitutional right,” and the court
“indicates

which

showing.”

A

demonstrating

specific
petitioner

that

the

issue
can

issues

or

issues

satisfy
raised

satisfy

that
are

[that]

standard

debatable

by

among

jurists, that a court could resolve the issues differently, or
that

the

questions

deserve

further

proceedings.

Slack

v.

McDaniel, 529 U.S. 473 (2000)(citing Barefoot v. Estelle, 463
U.S. 880, 893 (1983)). In addition, when the court’s ruling is
based on procedural grounds, a petitioner must demonstrate that
7

“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

district court was correct in its procedural ruling.”
529

U.S.

at

484.

The

court

finds

that

appealability should not issue in this case.
that

the

court’s

ruling

resulting

in

the

a

the

Slack,

certificate

of

Nothing suggests
dismissal

action as time barred is debatable or incorrect.

of

this

The record is

devoid of any authority suggesting that the Tenth Circuit Court
of Appeals would resolve the issues in this case differently.
IT IS THEREFORE BY THE COURT ORDERED that this petition for
writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 is
denied.
IT IS FURTHER ORDERED that a certificate of appealability
is denied.
IT IS SO ORDERED.
DATED:

This 21st day of October, 2014, at Topeka, Kansas.

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

8