Gonzales (ID 72765) v. Kansas, State of et al

Filing 5

MEMORANDUM AND ORDER ENTERED: Petitioner's motion to appoint counsel 2 is denied. Petitioner's motion to proceed in forma pauperis 4 is denied as moot due to petitioner's payment of the filing fee. Petitioner is granted to and i ncluding January 2, 2018, to show cause why this matter should not be dismissed due to his failure to timely file the petition. Signed by U.S. Senior District Judge Sam A. Crow on 12/01/17. Mailed to pro se party Gerald E. Gonzales by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GERALD E. GONZALES,
Petitioner,
v.

CASE NO. 17-3168-SAC

WARDEN SAM CLINE1,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se and paid the filing fee.2
Screening
The Court is required to examine habeas corpus petitions
promptly and to dismiss a petition “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled
to relief in the district court.” Rule 4, Rules Governing Section 2254
Cases. The timeliness of a petition may be raised sua sponte by the
Court. See Day v. McDonough, 547 U.S. 198, 209 (2006).
Motion for appointment of counsel
Petitioner moves for the appointment of counsel. An applicant
for habeas corpus relief has no constitutional right to the
appointment of counsel. See Swazo v. Wyo. Dept. of Corr., 23 F.3d 332,
333 (10th Cir. 1994)(“[T]here is no constitutional right to counsel
beyond the appeal of a criminal conviction, and … generally
appointment of counsel in a § 2254 proceeding is left to the court’s
discretion.”). Rather, the court may appoint counsel when “the
1
2

The Court substitutes Warden Cline as the respondent in this action.
The Court will deny petitioner’s motion to proceed in forma pauperis as moot.

interests of justice so require” for a petitioner who is financially
eligible. See 18 U.S.C. § 3006A(1)(2)(b).
The court has studied the petition and concludes that the
appointment of counsel is not warranted. The petitioner is able to
express his claims, there is no suggestion that this matter is
unusually complicated, and it does not appear that an evidentiary
hearing will be needed in this matter.
The petition
The petition lists three grounds for relief: (1) that petitioner
is held on a “false claim”, which he supports by reference to a change
in his Presentence Investigation; (2) that the State used a false
police report to detain him; and (3) actual innocence.
Timeliness of the petition
Under 28 U.S.C. § 2244(d)(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 judgement of a State court,” running 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
action;
(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.

28 U.S.C. § 2244(d)(1)(A)-(D).
The limitation period is tolled during the pendency of a state
application for post-conviction relief that is properly filed during
the limitations period. 28 U.S.C. § 2244(d)(2).
In addition, the one-year filing period may be equitably tolled
in “extraordinary circumstances.” Clark v. Oklahoma, 468 F.3d 711,
714 (10th Cir. 2006). For equitable tolling, a petitioner must “show
both extraordinary circumstances preventing timeliness and diligent
pursuit of his claim.” Id. Qualifying circumstances include “when an
adversary’s conduct – or other uncontrollable circumstances –
prevents a prisoner from timely fling, or when a prisoner actively
pursues judicial remedies but files a defective pleading during the
statutory period.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.
2000).
The Court has reviewed the petition and has examined the on-line
records maintained by the state appellate courts3 and finds as
follows:
Petitioner’s direct appeal was decided by the Kansas Supreme
Court on August 12, 2011, and became final ninety days later, on
November 9, 2011, upon the expiration of the time for seeking review
by the United States Supreme Court. See Locke v. Saffle, 237 F.3d 1269,
1273 (10th Cir. 2001) and Sup. Ct. R. 13.1 (requiring petition for
certiorari to be filed within 90 days after entry of judgment).
The limitation period began to run on November 10, 2011, and ran

3

http://www.kscourts.org

until petitioner filed his state post-conviction action on August 3,
2012, tolling the limitation period. See 28 U.S.C. §2244(d)(2)(“The
time during which a properly filed application for State
post-conviction or other collateral relief with respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.”) At that point, 267
days had run on the limitation period, with 98 days remaining.
The limitation period remained tolled until the Kansas Supreme
Court denied review on July 21, 2015. The period began to run again
on July 21, 2015, and was tolled thirteen days later, on August 4,
2015, when petitioner filed a motion to correct illegal sentence. This
left 85 days remaining on the one-year period. The Kansas Court of
Appeals entered its decision on February 24, 2017, and, assuming the
limitation period remained tolled until the expiration of the 30-day
period for petitioner to file a petition for review, it began to run
again on or about March 28, 2017, and expired on or about June 20,
2017.
Claim of Actual Innocence
In Ground 3 of the petition4, petitioner claims that he is
innocent. A claim of actual innocence gives rise to “an equitable
exception to 28 U.S.C. §2244(d)(1).” McQuiggin v. Perkins, 569 U.S.
383, 133 S.Ct. 1924, 1931 (2013). Such a claim must be based upon
factual innocence and not legal insufficiency. Bousley v. United
States, 523 U.S. 614, 623 (1998). A petitioner presenting a claim of

4

Doc. #1, p. 15.

actual innocence must show that “in light of new evidence, ‘it is more
likely than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt.’” House v. Bell, 547 U.S. 518, 636-37
(2006)(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). The standard
for such a claim is demanding, and requires a petitioner to “support
his allegations of 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.
Here, petitioner does not identify any new evidence in support
of his claim of innocence. He claims only that a statement provided
by a physician, if examined closely, will show that he is innocent
(Doc. #1, p. 15). This is an inadequate showing to support equitable
tolling.
Order to Show Cause
The present petition, filed on September 22, 2017, was not filed
within the one-year limitation period and is subject to dismissal
unless petitioner can show that he is entitled to equitable tolling.
Petitioner is directed to show cause why this matter should not be
dismissed for the reasons set out herein, and to identify any ground
for equitable tolling.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
appoint counsel (Doc. #2) is denied.
IT IS FURTHER ORDERED petitioner’s motion to proceed in forma
pauperis (Doc. #4) is denied as moot due to petitioner’s payment of

the filing fee.
IT IS FURTHER ORDERED petitioner is granted to and including
January 2, 2018, to show cause why this matter should not be dismissed
due to his failure to timely file the petition.
IT IS SO ORDERED.
DATED:

This 1st day of December, 2017, at Topeka, Kansas.

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