Robinson (ID 93050) v. Norwood
ORDER this matter is dismissed without prejudice to allow petitioner to exhaust state court remedies. It is further Ordered that Plaintiff's 2 Motion to Stay Case is denied. Signed by District Judge Sam A. Crow on 12/21/2016. Mailed to pro se party Elgin R. Robinson, Jr. by regular mail. (ht)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ELGIN R. ROBINSON, JR.,
CASE NO. 16-3247-SAC
MARTIN J. SAUERS, Respondent.
O R D E R
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se, and his application to proceed
in forma pauperis is pending.
Petitioner also moves the Court to stay the petition.
Petitioner was convicted in October 2008. The Kansas Supreme
Court affirmed his convictions on direct appeal by an order entered
on March 2, 2012. State v. Robinson, 270 P.3d 1183 (Kan. 2012).
Petitioner did not seek additional review in the U.S. Supreme Court.
On May 18, 2012, petitioner filed a motion for post-conviction
relief under K.S.A. § 60-1507. (Case No. 12cv1704, Appellant’s Brief,
2015 WL 1069580, *3 (Kan.App. Feb. 17, 2015)). A petition for review
is pending before the Kansas Supreme Court (Appellate Case Number
111923, petition for review filed Apr. 25, 2016).
Petitioner filed this action on December 5, 2016.
Under Rule 4 of the Rules Governing Section 2254 Cases, a federal
court must review a habeas corpus petition upon filing and must dismiss
the petition without requiring a response where it appears from the
petition and any exhibits that the petitioner is not entitled to
relief. See 28 U.S.C.A. foll. §2254 (HC Rule 4).
Exhaustion of state court remedies
Generally, federal habeas corpus relief is not available to a
state prisoner unless all state court remedies are exhausted before
the petition is filed. 28 U.S.C. § 2254(b)(1)(A). The exhaustion
requirement is grounded in comity and recognizes that “States should
have the first opportunity to address and correct alleged violations
of state prisoner’s federal rights.” Coleman v. Thompson, 501 U.S.
722, 731 (1991).
The exhaustion requirement is satisfied when each claim has been
presented to the state courts, including the appellate courts, by
“invoking one complete round of the State’s established appellate
review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Where a state prisoner has not exhausted available state court
remedies, the federal habeas petition should be dismissed. See Rose
v. Lundy, 455 U.S. 509 (1982), 28 U.S.C. § 2254(b)(codifying the
Electronic records maintained by the Kansas appellate courts1
reflect that petitioner has pending motions in his criminal case and
that his petition for review in the action filed under K.S.A. 60-1507
remains pending. Accordingly, he has not yet met the exhaustion
requirement, and his claims are not properly before this court.
Petitioner’s motion to stay
Petitioner asks the Court to stay this matter due to his
uncertainty about the time remaining on the one-year limitation
In Rhines v. Weber, 544 U.S. 269 (2005), the U.S. Supreme Court
held that in some circumstances, a federal court may stay a mixed
petition for habeas corpus and “hold it in abeyance while the
petitioner returns to state court to exhaust his previously
unexhausted claims.” Rhines, 544 U.S. at 275.
Having considered the record, the Court declines to stay this
matter. First, the present petition does not involve a mixed petition,
that is, one containing both exhausted and unexhausted claims.
Next, it appears that the limitation period has not yet begun
to run in this action.
The statute of limitations for filing a federal petition for
habeas corpus is set out in 28 U.S.C. § 2244(d), which provides:
(1) A 1-year period of limitation shall apply to an
application for a 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:
(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;
(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
The Court cannot provide legal advice to petitioner. However, as a prisoner in
Kansas state custody, petitioner may seek legal assistance from Legal Services for
Prisoners or the Paul E. Wilson Project for Innocence & Post-Conviction Remedies.
(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.
(2) 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
Petitioner’s direct appeal was decided on March 2, 2012, and it
became final for habeas corpus purposes ninety days later, when the
time for seeking review in the United States Supreme Court ended.
Ordinarily, the limitations period would begin to run at that time.
Jimenez v. Quarterman, 555 U.S. 113, 115 (2009)(when a petitioner does
not seek review in the U.S. Supreme Court, a judgment becomes final
under § 2244(d)(1)(A) when the time for seeking certiorari in the U.S.
Supreme Court expires).
However, the statute of limitations was tolled by petitioner’s
filing of a state post-conviction action on March 18, 2012, and has
remained tolled, because that action remains pending before the Kansas
Supreme Court. 28 U.S.C. § 2244(d)(2).
Accordingly, the Court will deny the motion to stay this matter.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
without prejudice to allow petitioner to exhaust state court remedies.
IT IS FURTHER ORDERED the motion to stay (Doc. #2) is denied.
IT IS SO ORDERED.
This 21st day of December, 2016, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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