Davis (ID 71960) v. Heimgartner et al

Filing 16

ORDER TO SHOW CAUSE ENTERED: The stay in this matter is lifted, and petitioner is granted to and including November 8, 2021, to show cause why this matter should not be dismissed as time-barred. Signed by U.S. Senior District Judge Sam A. Crow on 10/6/2021. Mailed to pro se party Peter J. Davis by regular mail. (jal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PETER J. DAVIS,
Petitioner,
v.

CASE NO. 17-3110-SAC

JAMES HEIMGARTNER,
Respondent.

ORDER TO SHOW CAUSE
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Previously, the court stayed this matter and directed
petitioner to provide status reports concerning his ongoing state
court proceedings. The court has considered the record, lifts the
stay, and directs petitioner to show cause why this matter should not
be dismissed.
Background
Petitioner was convicted in the District Court of Wyandotte
County of first-degree murder, attempted first-degree murder, and
conspiracy to commit first-degree murder. He was sentenced to a term
of life in prison plus 117 months. The Kansas Supreme Court affirmed
the convictions. State v. Davis, 83 P.3d 182 (Kan. 2004). Petitioner
then filed a motion to correct illegal sentence. The district court
denied the motion, and the decision was affirmed on appeal. State v.
Davis, 156 P.3d 665 (Kan. 2007).
In 2007, petitioner filed a motion under K.S.A. 60-1507. In 2009,
he filed another motion under that provision, and his counsel filed
a supplemental motion. The district t court considered the motions
together, and, after hearing testimony and directing written

argument, summarily dismissed the motions as untimely. The Kansas
Court of Appeals affirmed that decision. Davis v. State, 36 P.3d 1221
(Kan. Ct. App. 2016), rev. denied, Jan. 23, 2017.
Petitioner filed the present petition on July 5, 2017.

Discussion
This petition 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 limitation period ordinarily runs from the date the judgment
becomes “final,” as provided by § 2244(d)(1)(A). See Preston v.
Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Under Supreme Court law,
“direct review” concludes when the availability of direct appeal to
the state courts and request for review to the Supreme Court have been

exhausted. Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). The Rules
of the Supreme Court allow ninety days from the date of the conclusion
of direct appeal to seek certiorari. U.S. S. Ct. Rule 13.1. “If a
prisoner does not file a petition for writ of certiorari with the
United States Supreme Court after his direct appeal, the one-year
limitation

period

begins

to

run

when

the

time

for

filing

a certiorari petition expires.” United States v. Hurst, 322 F.3d
1256, 1259 (10th Cir. 2003) (internal quotations omitted). The
one-year period of limitation begins to run the day after a conviction
is final. See Harris v. Dinwiddie, 642 F.3d 902, 906-07 n.6 (10th Cir.
2011).
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).
In addition, the one-year limitation period is subject to
equitable tolling in “rare and exceptional circumstances.” Gibson v.
Klinger, 232 F.3d 799, 808 (2000)(internal quotation marks omitted).
This remedy is available only “when an inmate diligently pursues his
claims and demonstrates that the failure to timely file was caused
by extraordinary circumstances beyond his control.” Marsh v. Soares,
223 F.3d 1217, 1220 (10th Cir. 2000). Circumstances that warrant
equitable tolling include “for example, when a prisoner is actually
innocent, when an adversary’s conduct – or other uncontrollable

circumstances – prevents a prisoner from timely filing, or when a
prisoner actively pursues judicial remedies but files a deficient
pleading during the statutory period.” Gibson, 232 F.3d at 808
(internal citations omitted). Likewise, misconduct or “egregious
behavior” by an attorney may warrant equitable tolling. Holland v.
Florida, 560 U.S. 631 651 (2010). However, “[s]imple excusable neglect
is not sufficient.” Gibson, id.
Here, petitioner’s direct review concluded ninety days after the
Kansas Supreme Court affirmed his convictions on January 30, 2004,
and remained tolled until the Kansas Supreme Court affirmed the denial
of the motion to correct illegal sentence on April 27, 2007. The
limitation period began to run again on the following day.
Where

an

does not qualify

action
as

a

has

been

rejected

“properly filed”

as

untimely,

application

for

it

State

post-conviction relief within the meaning of 28 U.S.C. § 2244(d)(2)
and does not, therefore, toll the one-year statute of limitations for
filing a federal habeas petition. Pace v. DiGuglielmo, 544 U.S. 408,
410 (2005). The Kansas courts determined the petitioner’s motions
filed under

K.S.A. 60-1507 in 2007 and 2009 were not timely filed.

Davis v. State, 365 P.3d at *2 (“We … find no support for Davis’
argument that his motion to correct an illegal sentence should be
construed as a direct appeal, and we agree that his K.S.A. 60-1507
motions were untimely.”). Accordingly, the motions filed in 2007 and
2009 did not toll the limitation period, and the present petition,

filed in 2017, is time-barred unless petitioner can show that he is
entitled to equitable tolling.
Order to Show Cause
For the reasons set forth, the court directs petitioner to show
cause why this matter should not be dismissed as barred by the
limitation period. The failure to file a timely response will result
in the dismissal of this matter.
IT IS, THEREFORE, BY THE COURT ORDERED the stay in this matter
is lifted, and petitioner is granted to and including November 8, 2021,
to show cause why this matter should not be dismissed as time-barred.
IT IS SO ORDERED.
DATED:

This 6th day of October, 2021, at Topeka, Kansas.

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