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

Filing 9

MEMORANDUM AND ORDER ENTERED: This matter is dismissed due to petitioner's failure to commence this action within the limitation period. No certificate of appealability will issue. Signed by U.S. Senior District Judge Sam A. Crow on 01/12/18. 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 CLINE,
Defendants.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§2254. On December 1, 2017, the Court directed petitioner to show cause
why this matter should not be dismissed due to his failure to file
the petition within the one-year limitation period under 28 U.S.C.
2244(d)(1). Petitioner filed a response.
Background
Petitioner was convicted in the District Court of Sedgwick
County, Kansas. Before sentencing, he filed a motion for a new trial
on the ground of ineffective assistance of counsel. The district court
held an evidentiary hearing and denied the motion; petitioner’s case
then proceeded on direct appeal to the Kansas Supreme Court. State
v. Gonzales, 212 P.3d 215 (Kan. 2009). The Kansas Supreme Court noted
that the district court had treated the motion for new trial as a motion
under K.S.A. 60-1507. It, too, treated the claims of ineffective
assistance of counsel as raised under K.S.A. 60-1507 and affirmed the
denial of the request for a new trial, but it remanded the matter to
the state district court for resentencing.
Following resentencing, petitioner filed a sentencing appeal,
which the Kansas Supreme Court affirmed in part, and dismissed in part.

State v. Gonzales, 257 P.3d 345 (Table), 2011 WL 3558302 (Kan. Aug.
12, 2011). The decision became final ninety days later, on November
9, 2011, when the time for seeking review in the U.S Supreme Court
expired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001).
The one-year limitation period began to run on November 10, 2011,
and ran until petitioner filed his state post-conviction action on
August 3, 2012. See 28 U.S.C. § 2244(d)(2)(providing statutory tolling
for the time during which a properly-filed application for State
post-conviction or other collateral relief is pending). At this point,
267 days had run on the one-year limitation period, and 98 days
remained.
The limitation period was tolled until the Kansas Supreme Court
denied review on July 21, 2015. Gonzales v. State, 327 P.3d 1052
(Table), 2014 WL 3289775 (Kan. App. Jul. 3, 2014), rev. denied, Jul.
21, 2015. The limitation period then began to run again but was tolled
on August 4, 2015, by petitioner’s motion to correct illegal sentence.
This left 85 days remaining on the one-year limitation period.
The district court denied relief, and the Kansas Court of Appeals
affirmed that decision on February 24, 2017. State v. Gonzales, 390
P.3d 122 (Table), 2017 WL 751360 (Kan.App. Feb. 24, 2017).

The

limitation period began to run again after the expiration of the time
for filing an appeal and expired on or about June 20, 2017.
Petitioner commenced this action on September 22, 2017,
approximately three months after the limitation period expired.
Discussion
In his response, petitioner argues: (1) the Kansas courts erred
in treating his August 2007 motion for new trial as a motion filed
under K.S.A. 60-1507; (2) he has attempted to exhaust all remedies

in challenging his conviction; (3) his trial attorney failed to
provide adequate assistance; (4) petitioner was required to attend
trial in dirty, inappropriate clothing; (5) his sentencing attorney
provided ineffective assistance of counsel; and (6) the trial judge
was not impartial.
The Court has considered these claims but finds no basis to
conclude that petitioner filed his habeas corpus action within the
one-year limitation period under 28 U.S.C. § 2244(d)(1). Petitioner’s
arguments largely allege trial error and are not relevant to the
question of whether he timely filed his federal petition for habeas
corpus.
Likewise, while equitable tolling is available in narrow
circumstances, a petitioner seeking such tolling must show “(1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)(quoting Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner’s arguments do
not meet this showing. Accordingly, the Court concludes this matter
must be dismissed.
Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, “the district court must issue or deny
a certificate of appealability when it enters a final order adverse
to the applicant.” A certificate of appealability should issue “only
if the applicant has made a substantial showing of the denial of a
constitutional right,” and the Court identifies the specific issue
that meets that showing. 28 U.S.C. § 2253.
Where, as here, the Court’s decision is based on a procedural

ground, the petitioner must show 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 concludes that the present record does not warrant the
issuance of a certificate of appealability. The dismissal is based
upon procedural grounds, and the ruling that petitioner failed to
timely file this matter is not reasonably debatable.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
due to petitioner’s failure to commence this action within the
limitation period.
IT IS FURTHER ORDERED no certificate of appealability will issue.
IT IS SO ORDERED.
DATED:

This 12th day of January, 2018, at Topeka, Kansas.

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