Bell (ID 78997) v. Heimgartner et al
MEMORANDUM AND ORDER ENTERED: Petitioner is granted thirty (30) days in which to either pay the filing fee or submit a properly-supported motion to proceed in forma pauperis upon court-approved forms. Within the same thirty-day period, petitioner i s required to submit his federal habeas corpus petition upon court-approved forms and in his new petition to show full and proper exhaustion of state court remedies or that his procedural default should be excused as well as show cause why this petition should not be dismissed as time-barred. Signed by Senior District Judge Sam A. Crow on 04/29/14. (Mailed to pro se party Nathaniel Bell by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Warden, et al.,
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 El Dorado
Correctional Facility, El Dorado, Kansas.
Having examined the
materials filed, the court finds that the filing fee prerequisite
has not been satisfied and the petition is defective.
is given time to cure all deficiencies.
petition is $5.00.
Petitioner has neither paid the fee nor
This action may not proceed unless the filing
fee is satisfied in one of these two ways.
A prisoner seeking to
28 U.S.C. § 1915(a)(1).
In addition, he must
submit a certified accounting of the funds available to him in
his institutional account.
D.Kan.Rule 9.1(g);1 see also Rule
3(a)(2) of the Rules Governing Section 2254 Cases in the United
States District Courts (hereinafter HC Rules)(habeas petition
must be accompanied by “a motion for leave to proceed in forma
pauperis, the affidavit required by 28 U.S.C. § 1915, and a
certificate from the warden or other appropriate officer of the
place of confinement showing the amount of money or securities
that the petitioner has in any account in the institution.”).
The clerk shall send forms to petitioner for filing a proper IFP
If Mr. Bell does not satisfy the filing fee within the
prescribed time, this action may be dismissed without further
In 2003, Mr. Bell was convicted upon trial by jury in the
premeditated murder and sentenced to life without parole for 25
D.Kan.Rule 9.1(g)(2)(A) provides:
Where a petitioner, movant, or plaintiff is an inmate of a penal
institution and desires to proceed without prepayment of fees, he
or she must also submit a certificate executed by an authorized
officer of the institution in which he or she is confined. The
certificate must state the amount of money or securities on
deposit to his or her credit in any account in the institution.
He appealed to the Kansas Supreme Court (KSC), which
affirmed on October 28, 2005.
He alleges that he did not pursue
any state post-conviction remedies on the issue raised in his
The instant federal habeas corpus petition was
electronically filed on April 7, 2014.
Mr. Bell claims that he was denied his Sixth Amendment right
to effective assistance of counsel.
As facts in support, he
evaluation after petitioner expressed that he “was not thinking
clearly, didn’t understand the nature of the proceedings against
him and was seeing dead people” and that counsel “failed to
reveal psychological test result to the defendant.”2
seeks an evidentiary hearing on his claim so that he may be
The court has reviewed this petition as required under HC
Rule 4 and finds that it is defective.
First, the petition is
not upon court-approved forms as required by local court rule.
Petitioner provides no description of this test result, and consequently
no indication that it was crucial or even relevant to his defense. Nor does
he show that he exhausted state court remedies on a claim that trial counsel
was ineffective for failing to reveal test results to him.
Second, it appears that petitioner’s claim was not fully
exhausted and is now procedurally defaulted.
Mr. Bell alleges
petition on direct appeal, but the opinion of the KSC indicates
On direct appeal, Bell claimed that (1) his statement
made during police interrogation should have been suppressed, (2)
the trial court erred in giving Jury Instruction 11 and (3)
prosecutorial misconduct during closing.
See State of Kansas v.
Bell, 280 Kan. 358, 121 P.3d 972 (Kan. 2005).
claim was not raised on direct appeal, in order to have exhausted
However, he alleges in his federal petition that
he did not raise this issue by state post-conviction motion.
State court records indicate that Mr. Bell filed at least
two state post-conviction motions.
On October 4, 2006, he filed
his first pro se motion pursuant to K.S.A. 60-1507.
court denied the motion following a non-evidentiary hearing, and
Bell appealed to the Kansas Court of Appeals (KCA).
found that Bell alleged the following in this 60-1507 motion:
(1) The district court failed to conduct a competency
hearing pursuant to K.S.A. 22-3302; (2) the prosecutor
violated Bell’s right to a fair trial by withholding
exculpatory evidence about the victim’s toxicology
In order to fully exhaust state court remedies, the petitioner must
present his claim first to the trial court, then to the Kansas Court of
Appeals and ultimately to the Kansas Supreme Court.
report . . , (3) ineffective assistance of counsel
because his trial counsel failed to file a motion for
discovery and inspection pursuant to K.S.A. 22-3212;
and (4) ineffective assistance of counsel based on his
trial counsel’s failure to cross-examine the coroner’s
finding in the toxicology report regarding the presence
of drugs in the victim.
Bell v. State, 207 P.3d 288, 2009 WL 1499209 (Kan.App. May 22,
2009), review denied, (Kan. Oct. 24, 2011).
The KCA further
On appeal, Bell claims that the district court erred in
denying his K.S.A. 60-1507 motion without conducting an
evidentiary hearing. Specifically, Bell claims he was
entitled to an evidentiary hearing: (1) to determine
whether the State withheld exculpatory evidence from
the defense, namely Felix’s toxicology report, in
violation of Brady v. Maryland . . . and (2) to
determine whether defense counsel’s failure to file a
motion for discovery of Felix’s toxicology report
constituted ineffective assistance of counsel.
does not argue on appeal any other issues raised in his
K.S.A. 60-1507 motion, including his claim that the
district court erred in failing to conduct a competency
hearing. Any issues not briefed on appeal are deemed
waived or abandoned. . . .
Since petitioner did not present his competency exam claim
to the appellate courts during these first 60-1507 proceedings,
it is clear that it was not exhausted during these proceedings.4
On October 26, 2011, Mr. Bell filed a second 60-1507 motion
in which he contended that “his trial counsel was ineffective for
In 2011 “Bell filed a motion to correct an illegal sentence, arguing the
district court’s failure to order a competency examination violated his due
process rights,” which the “district court correctly denied.”
See Bell v.
State of Kansas, 302 P.3d 45, 2013 WL 2991068, *1 (Kan.App. June 14, 2013),
review denied, (Kan. Nov. 22, 2013). Bell did not appeal that ruling. Id.
failing to request a competency examination.”
holding a hearing or appointing counsel for Bell, the district
untimely. . . .”
The KCA found that Bell had “effectively
raised and then abandoned” his “successive claim based on the
absence of a competency examination before his trial.”
The KCA reasoned:
Bell alleged the district court presiding over the
trial should have ordered an examination. The district
court, however, saw nothing at trial to suggest Bell
was incapable of understanding the proceedings or
assisting in his defense. The district court had ample
especially given that he testified in his own defense.
Bell now tries to repackage the issue as one of his
trial lawyer’s incompetence in failing to request an
examination. But Bell’s attempt to shift responsibility
around from the district court to trial counsel doesn’t
advance his cause.
Id. at *2.
Bell appealed this ruling to the KCA, which affirmed
on June 14, 2013, and the KSC denied review on November 22, 2013.
From the foregoing the court finds that Mr. Bell failed to
fully exhaust state court remedies on his claim when he had the
opportunity and that his claim was eventually dismissed by the
“procedurally defaulted” his claim in state court, federal habeas
corpus review of this claim may be barred.
“In all cases in
which a state prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state procedural
rule, federal habeas review of the claims is barred unless the
prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.”
Coleman v. Thompson, 501
U.S. 722, 724 (1991); Hume v. McKune, 176 F.Supp.2d 1134, 1140
“A state procedural ground is independent if it
relies on state law, rather than federal law . . .”
Cody, 146 F.3d 1257, 1259 (10th Cir. 1998).
In order to be
adequate, a state default rule “must be applied evenhandedly in
the vast majority of cases.”
The “cause” standard requires
petitioner to “show that some objective factor external to the
defense impeded . . . efforts to comply with the state procedural
Murray v. Carrier, 477 U.S. 478, 488 (1986).
of such external factors include the discovery of new evidence, a
change in the law, and interference by state officials.
resulting from the errors of which he complains.”
v. Frady, 456 U.S. 152, 168 (1982).
The miscarriage of justice exception requires a showing that
a constitutional violation probably resulted in the conviction of
one who is actually innocent.
Schlup v. Delo, 513 U.S. 298,
326-27 (1995); McCleskey v. Zant, 499 U.S. 467, 494 (1991)(A
“fundamental miscarriage of justice” requires a petitioner to
demonstrate that he is “actually innocent” of the crime of which
he was convicted.).
This exception is limited to cases in which
the applicant can show “by clear and convincing evidence that,
but for a constitutional error, no reasonable juror would have
found the petitioner” guilty.
See Dretke v. Haley, 541 U.S. 386,
“‘[A]ctual innocence’ means factual innocence, not
mere legal insufficiency.”
Bousley v. United States, 523 U.S.
614, 624 (1998); Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir.
2000)(citing Herrera v. Collins, 506 U.S. 390, 403-404 (1993)(The
petitioner must make a colorable showing of factual, not just
constitutional error with new reliable evidence-whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence-that was not presented at trial.”
Schlup, 513 U.S. at 324.
Petitioner has made no such showing.
successive were based on K.S.A. 60-1507(c), which provides that
Kansas courts will entertain a successive 60-1507 motion only in
independent and adequate state procedural grounds that have been
Mr. Bell makes no attempt to show cause and prejudice and
does not appear to be aware of the procedural default doctrine.
Actual innocent of first degree premeditated murder
under Kansas law due to personality disorder NOS
diagnosis. Newly presented evidence. Also See Exhibit
A attached to petition, Kansas Department of Correction
mental health files, Dr. Bruce Nystrom evaluation
results and supporting facts memorialized in documents
ancillary to the formal record.
None of these bald references amounts to sufficient facts to meet
petitioner’s heavy burden of establishing actual innocence.
e.g., Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007).
Bell’s “Exhibit A” is his narrative description of his personal
difficulties that concludes with “my rage got the best of me and
I kill a friend of mine” and “I should have been getting help
Petition (Doc. 1-1) at 2.
His general references to
KDOC “mental health files,” Dr. Nystrom “evaluation results,” and
facts in documents include no explanation whatsoever of content
Mr. Bell is required to submit his federal petition upon the
appropriate forms and in his new petition to show either that he
fully and properly exhausted state court remedies on his claim or
that the procedural default of his claim in state court should be
Finally, the court finds that Mr. Bell’s federal petition
appears to be time-barred.
28 U.S.C. § 2244(d)(1) applicable to
federal habeas corpus petitions provides 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.
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).
On the other
application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim . . . .”
U.S.C. § 2244(d)(2).
Applying these principles to petitioner’s case, the court
finds that Mr. Bell’s conviction became “final” for § 2244(d)
completion of his direct appeal.
The limitation period then ran
without interruption until Bell filed his first 60-1507 motion on
October 4, 2006.
At that point 251 days of the one-year period
had expired, and 114 days remained.
The limitations period was
tolled during the pendency of petitioner’s two state collateral
proceedings concluded when the KSC denied review on November 22,
The federal statute of limitations started running again
on this date and ran unimpeded until it expired 114 days later on
March 16, 2014.
As noted, Mr. Bell did not file his federal
procedural history of petitioner’s case that, without additional
tolling, his federal Petition is time barred.6
Mr. Bell is
For purposes of initial review only, the court assumes that the
limitations period was tolled during petitioner’s second state collateral
While it was clearly tolled during the first, petitioner’s
second collateral proceedings might be held to have not tolled the federal
limitations period if it were determined that this was not a “properly filed
“AEDPA’s one-year statute of limitations is subject to equitable tolling
but only ‘in rare and exceptional circumstances.’”
Gibson v. Klinger, 232
F.3d 799, 808 (10th Cir. 2000)(citing Davis v. Johnson, 158 F.3d 806, 811 (5th
Cir. 1998), cert. denied, 526 U.S. 1074 (1999)). To qualify for such tolling,
petitioner must demonstrate that extraordinary circumstances beyond his
control prevented him from filing his federal petition on time, and that he
diligently pursued his claims throughout the period he seeks to toll. Miller
v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891 (1998);
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000), cert. denied, 531 U.S.
The Tenth Circuit has stated that equitable tolling is
appropriate, for example, where a prisoner is actually innocent; when an
adversary’s conduct or other uncontrollable circumstances prevent a prisoner
from timely filing; or when a prisoner actively pursues judicial remedies but
files a defective pleading during the statutory period. Burger v. Scott, 317
F.3d 1133, 1141 (10th Cir. 2003); Miller, 141 F.3d at 978; Gibson, 232 F.3d at
808 (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)).
Complaints about unfamiliarity with the legal process and illiteracy have been
found to provide no basis for equitable tolling. See Hallcy v. Milyard, 387
Fed. Appx. 858 (10th Cir. 2010)(professed ignorance of the law is not enough
to justify the extraordinary remedy of equitable tolling); accord Yang v.
Archuleta, 525 F.3d 925, 929 (10th Cir. 2008) (quoting Wallace v. Kato, 549
U.S. 384, 396 (2007)); Scott v. Johnson, 227 F.3d 260, 263 n.3 (5th Cir.
2000), cert. denied, 532 U.S. 963 (2001).
Moreover, ignorance of the law
generally and the AEDPA time limit in particular will not excuse untimely
filing, even for an incarcerated pro se prisoner.
Marsh, 223 F.3d at 1220;
Miller, 141 F.3d at 978; Gibson, 232 F.3d at 808.
required in his new petition to fully address the timeliness
issue and show cause why this action should not be dismissed as
IT IS THEREFORE ORDERED that petitioner is granted thirty
(30) days in which to either pay the filing fee or submit a
IT IS FURTHER ORDERED that within the same thirty-day period
petition upon court-approved forms7 and in his new petition to
show full and proper exhaustion of state court remedies or that
his procedural default should be excused as well as show cause
why this petition should not be dismissed as time-barred.
IT IS SO ORDERED.
Dated this 29th day of April, 2014, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
Petitioner must write this case number, 14-3056, at the top of the first
page of his new petition.
He must fully complete the forms, and may not
simply refer to his initial petition.
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