Edgar (ID 78863) v. Cline
MEMORANDUM AND ORDER ENTERED: The petition for habeas corpus is dismissed. No certificate of appealability shall issue. Signed by U.S. Senior District Judge Sam A. Crow on 01/25/17. Mailed to pro se party Neil Edgar by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 16-3185-SAC
MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. By an order entered on October 5, 2016 (Doc. #3), the Court
directed petitioner to show cause why the petition should not be
dismissed due to his failure to file it within the one-year limitation
period established in 28 U.S.C. § 2244(d)(1).
Petitioner filed a timely response (Doc. #4) in which he presents
two arguments: first, that his appellate counsel did not advise him
of the remedy under section 22541, and second, that he diligently
pursued legal remedies but filed a defective post-conviction
For equitable tolling, a petitioner must show both that he
diligently pursued his rights and that some extraordinary
circumstance prevented him from timely filing his federal habeas
petition. Lawrence v. Florida, 549 U.S. 327, 336 (2007). This showing
requires a petitioner to present “specific facts to support his claim
of extraordinary circumstances and due diligence.” Yang v. Archuleta,
“[A]ppellate counsel never informed defendant the need to pursue a 2254 motion.”
(Doc. #4, p. 1.)
525 F.2d 925, 928 (10th Cir. 2008).
Petitioner’s claim that his appellate counsel did not inform him
of the remedy under Section 2254 does not entitle him to equitable
tolling. “[I]gnorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.” Marsh v. Soares,
223 F.3d 1217, 1220 (10th Cir. 2000)(internal quotation marks
Likewise, petitioner’s claim that he filed a defective pleading
fails to identify any specific defect in either of his state
post-conviction actions that might arguably entitle him to equitable
Accordingly, the Court concludes this matter must be dismissed
due to petitioner’s failure to file within the statutory limitation
The Court also must consider whether a certificate of
appealability (“COA”) should be issued in this matter. The COA, a
prerequisite to appellate jurisdiction, may be granted “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the
dismissal is based upon procedural grounds, the petitioner must show
both 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 v. McDaniel, 529
U.S. 473, 484 (2000). The Court finds that the present record does
not support the issuance of a COA. The petition was not filed within
the limitation period, and petitioner has not shown any extraordinary
circumstance that merits equitable tolling.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas
corpus is dismissed.
IT IS FURTHER ORDERED no certificate of appealability shall
IT IS SO ORDERED.
This 25th day of January, 2017, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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