Davis (ID 71960) v. Heimgartner et al

Filing 13

MEMORANDUM AND ORDER ENTERED: Petitioner's motions to alter or amend and to stay this matter 6 & 10 are granted. Respondent's motion to dismiss 9 is denied. This matter is stayed subject to further order of the Court and petitioner is ordered to file a status report on or before October 22, 2018. Signed by U.S. Senior District Judge Sam A. Crow on 08/22/18. Mailed to pro se party Peter J. Davis by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PETER J. DAVIS,
Petitioner,
v.

CASE NO. 17-3110-SAC

JAMES HEIMGARTNER,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Respondent has moved for dismissal due to petitioner’s pending
state post-conviction action. Petitioner opposes that motion and
instead moves the Court to stay this matter.
Having considered the record, the Court enters the following
order.
Background
In 2001, petitioner was convicted in the District Court of
Wyandotte County. On January 30, 2004, the Kansas Supreme Court
affirmed his convictions. State v. Davis, 83 P.3d 182 (Kan. 2004).
On June 2, 2004, petitioner filed a motion to correct illegal
sentence. The district court summarily denied relief on June 22, 2005.
Petitioner unsuccessfully appealed that decision. State v. Davis, 156
P.3d 665 (Kan. 2007).
On June 5, 2007, petitioner filed a post-conviction action under
K.S.A. 60-15071. In 2009, he filed a second action under that
provision. The district court considered these applications for
Petitioner reports that he submitted this pleading to prison officials for filing
on May 4, 2007. The Court has used that date in its analysis in this order.
1

relief together, summarily dismissed the motions as untimely, and
denied relief. In a consolidated appeal, the Kansas Court of Appeals
affirmed in 2016. Davis v. State, 364 P.3d 1221 (Table), 2016 WL 368002
(Kan. Ct. App., Jan. 29, 2016), rev. denied, Jan. 23, 2017.
On December 11, 2017, petitioner executed a third petition in
the state district court raising three new grounds for relief which
was filed on December 17, 20172. The district court denied relief on
February 12, 2018, and petitioner filed a Notice of Appeal on March
15, 2018. To date, that notice has not been docketed in the Kansas
Court of Appeals.
Discussion
It is settled that a petition for habeas corpus ordinarily “shall
not be granted unless it appears that … the applicant has exhausted
the remedies available in the courts of the State.” 28 U.S.C. §2254
(b)(1)(A).
Where, as here, a petitioner presents a mixed petition, that is,
one containing both exhausted and unexhausted claims, the Court may
“in limited circumstances” allow a “stay and abeyance” to permit the
petitioner to complete the exhaustion of his unexhausted claims. See
Rhines v. Weber, 544 U.S. 269 (2005).
A stay is available where the court determines (1) that there
was good cause for the petitioner’s failure to exhaust all the claims;
(2) that the unexhausted claims are not plainly meritless; and (3)
that there is no indication that that the petitioner was intentionally
dilatory to prolong the litigation. See Rhines, 544 U.S. at 277-78.

A copy of the petition is attached to respondent’s motion to dismiss and reflects
the date the petition was executed (Doc. #9, Attach.). For purposes of this order,
the Court has used the date the petition was executed.
2

Good cause
In evaluating the good cause factor, the Court should consider,
in part, whether the petitioner has little time remaining on the
federal limitation period for filing a petition for habeas corpus.
Doe v. Jones, 762 F.3d 1174, 1180 (10th Cir. 2014)(limited time
remaining on statute is “a significant factor in determining whether
a Rhines stay is appropriate”). Petitioner satisfies this part of the
analysis.
A petition brought under 28 U.S.C. § 2254 is subject to the
one-year limitation period established by the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”) in 28 U.S.C. § 2244(d). Section
2244(d)(1) provides:
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)
(B)

(C)

(D)

The date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;
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;
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
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).
The statute also contains a tolling provision:
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.
28 U.S.C. § 2244(d)(2).
The petitioner’s direct appeal was decided on January 30, 2004.
The one-year limitation period began to run on April 30, 2004, after
the 90-day period for seeking review in the United States Supreme Court
ended. See Sup. Ct. R. 13. The limitation period ran until June 2,
2004, when petitioner filed the motion to correct illegal sentence.
At that point, 33 days had run on the limitation period, leaving 332
days remaining.
The filing of that motion tolled the limitation period until the
Kansas Supreme Court entered its decision on April 27, 2007. The
limitation period began to run again on April 28, 2007, and ran until
May 4, 2007, the date petitioner reports that he delivered a
post-conviction action to prison officials for filing. At this point,
six more days had run on the limitation, a total of 39 days, with 326
days remaining.
The filing of the post-conviction action again tolled the
limitation period, and it remained tolled until the Kansas Supreme
Court entered its decision on January 23, 2017. The limitation period
began to run again on January 24, 2017, and was tolled no earlier than
December 11, 2017, when petitioner executed the post-conviction
action that is now pending in the Kansas courts. This period of 321
days, when added to the 39 days that had already elapsed, totals 360
days. Because petitioner has only five days remaining on the

limitation period, the Court finds this factor militates in favor of
a stay.
Potentially meritorious claims
A stay is appropriate only if the unexhausted claims are
“potentially meritorious” and are not “plainly meritless”. Rhines,
544 U.S. at 277-78. The Court has reviewed the state post-conviction
action submitted by petitioner (Doc. #9, Attach.) and cannot find on
the present record that the claims, which allege the ineffective
assistance of counsel and the failure to properly preserve claims for
review, are plainly meritless.
Was petitioner intentionally dilatory?
Under Rhines, “[i]f a petitioner engages in abusive litigation
tactics or intentional delay, the district court should not grant him
a stay at all.” Rhines, 544 U.S. at 278. The Rhines Court cautioned
that a federal district court should not stay a mixed petition
indefinitely, id. at 277, and should be mindful that the petitioner
is proceeding at a reasonable pace in pursuing unexhausted claims.
Id. Here, petitioner is awaiting the docketing of his appeal in the
Kansas Court of Appeals, and there is no apparent failure to proceed.
Conclusion
Having considered the record, the Court concludes that a stay
and abeyance is warranted in this matter. First, it appears that
petitioner has only a short time remaining on the limitation period,
so that the dismissal of this action without prejudice would likely
render him unable to timely file a second petition. Next, because

petitioner is pursuing relief in the state courts, the state court
records likely will not be available to respondent in the near future.
Third, the present record does not allow the Court to determine that
petitioner’s unexhausted claims are wholly without merit. Finally,
it does not appear that petitioner has deliberately delayed his
pursuit of relief in the state courts.
Accordingly, the Court will stay this matter but directs
petitioner to file a status report on or before October 22, 2018.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motions to
alter or amend and to stay this matter (Docs. #6 and #10) are granted.
IT IS FURTHER ORDERED respondent’s motion to dismiss (Doc. #9)
is denied.
IT IS FURTHER ORDERED this matter is stayed subject to further
order of the Court, and petitioner is ordered to file a status report
on or before October 22, 2018.
IT IS SO ORDERED.
DATED:

This 22nd day of August, 2018, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge