Garcia-Hill (ID 99052) v. Kansas, State of
NOTICE AND ORDER TO SHOW CAUSE ENTERED: Petitioner is granted to and including January 5, 2018, to show cause why this matter should not be dismissed due to his failure to timely file the petition. The failure to file a timely response may result in the dismissal of this matter as time-barred without additional prior notice. Signed by U.S. Senior District Judge Sam A. Crow on 12/08/17. Mailed to pro se party Randy Garcia-Hill by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 17-3215-SAC
WARDEN EMMALEE CONOVER,
NOTICE AND ORDER TO SHOW CAUSE
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. The Court has conducted an initial review of the petition under
Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts and enters the following order. Under this rule, the
Court may sua sponte dismiss the petition if it “clear from the face
of the petition itself” that the action is not timely. Kilgore v. Atty.
General of Colorado, 519 F.3d 1084, 1089 (10th Cir. 2008).
In 2010, petitioner pled guilty to two counts of aggravated
indecent liberties with a child. He received a dispositional departure
sentence of probation for 36 months with an underlying sentence of
Within a few months, the State sought revocation of petitioner’s
probation. Following hearings, the state district court granted the
motion and ordered petitioner to serve the original sentence. The
Kansas Court of Appeals affirmed that decision. State v. Garcia-Hill,
270 P.3d 1229 (Table), 2012 WL 686809 (Kan. App. Feb. 17, 2012), rev.
denied, Feb. 19, 2013.
December 6, 2017.
Petitioner commenced this action on
The petitioner states that he also sought post-conviction relief
in the state district court in March 2017 but relief was denied during
the same month. (Doc. #1, p. 3).
The limitation period
This matter is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Under the AEDPA, a one-year limitation
period applies to habeas corpus petitions brought under 28 U.S.C.
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
(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 one-year limitation period generally runs from the date the
judgment becomes final, as provided by § 2244(d)(1)(A), unless the
petitioner asserts facts that implicate any of the remaining
provisions. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir.
Under the AEDPA, the limitation period is tolled for “[t]he 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”. 28 U.S.C. §2244(d)(2).
Finally, equitable tolling of the limitation period is available
in narrow circumstances. See Holland v. Florida, 560 U.S. 631, 645,
649 (2010)(stating that § 2244(d) “is subject to equitable tolling”).
A petitioner seeking equitable tolling must establish “(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
Here, the record suggests that petitioner did not timely file
this matter. His appeal following the revocation of probation became
final ninety days following the denial of review by the Kansas Supreme
Court on February 19, 2013, upon the expiration of the time for seeking
review in the U.S. 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). Thus,
the limitation period began running on May 21, 2013, and expired one
year later, long before petitioner filed his March 2017
Therefore, the petition must be dismissed unless petitioner can
show that he is entitled to equitable tolling.
In the section of the form petition that identifies the
limitation period, (Doc. #1, p. 13), petitioner states that he was
unaware of the habeas corpus remedy until recently. Despite this, the
Court finds no basis for equitable tolling, as ignorance of the law
is not a sufficient ground to toll the limitation period. See Marsh
v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)(“[I]gnorance of the
law, even for an incarcerated pro se petitioner, generally does not
excuse prompt filing.”(internal quotation marks omitted)) and Klein
v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995)(petitioner’s claim that
“he is not a lawyer and he was unaware of [a] statute’s existence are
insufficient as a matter of law to constitute ‘cause’” to overcome
a habeas procedural bar).
Order to Show Cause
The present petition, filed on December 6, 2017, was not filed
within the one-year limitation period under 28 U.S.C. § 2244(d) 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 as time-barred and to identify any
additional ground for equitable tolling.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner is granted to
and including January 5, 2018, to show cause why this matter should
not be dismissed due to his failure to timely file the petition. The
failure to file a timely response may result in the dismissal of this
matter as time-barred without additional prior notice.
IT IS SO ORDERED.
This 8th day of December, 2017, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?