Hogan (ID 68706) v. Kansas, State of

Filing 8

MEMORANDUM AND ORDER ENTERED: Petitioner's motion to reopen this matter 7 is denied. Signed by U.S. Senior District Judge Sam A. Crow on 04/23/18. Mailed to pro se party Byron L. Hogan by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BYRON L. HOGAN,
Petitioner,
v.

CASE NO. 18-3047-SAC

SAM CLINE,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. On April 5, 2018, the Court dismissed this matter as
time-barred and declined to issue a certificate of appealability.
Petitioner has filed a motion to reopen the case (Doc. #7).
In support of his motion, petitioner states that his
post-conviction counsel failed to notify him of the June 2, 2017,
action of the Kansas Supreme Court denying review in his case.
A petition for habeas corpus under Section 2254 is governed by
a one-year limitation period. 28 U.S.C. § 2244(d). The limitation
period is not jurisdictional and is subject to equitable tolling.
Holland v. Florida, 560 U.S. 631, 646 (2010).
Equitable tolling is available only in limited circumstances
where the prisoner shows “both extraordinary circumstances preventing
timeliness and diligent pursuit of his claim.” Clark v. Oklahoma, 468
F.3d 711, 714 (10th Cir. 2006). Where, as here, the error alleged was
committed by post-conviction counsel, the courts have declined to
allow equitable tolling.
As the Tenth Circuit has explained:

Habeas counsel’s negligence is not generally a basis for
equitable tolling because “[t]here is no constitutional
right to an attorney in state post-conviction proceedings.”
Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991). “The rationale is that attorney
negligence is not extraordinary and clients, even if
incarcerated, must ‘vigilantly oversee,’ and ultimately
bear responsibility for, their attorneys’ actions or
failures.” Modrowski v. Mote, 322 F3d 965, 968 (7th Cir.
2003); see also Merritt v. Blaine, 326 F.3d 157, 169 (3d
Cir. 2003)(applying general rule that “attorney error,
miscalculation, inadequate research, or other mistakes
have not been found to rise to the extraordinary
circumstances required for equitable tolling” (quotation
omitted)); Rouse v. Lee, 339 F.3d 238, 248 (4th Cir.
2003)(“[A] mistake by a party’s counsel in interpreting a
statute of limitations does not present the extraordinary
circumstance beyond the party’s control where equity should
step in to give the party the benefit of this erroneous
understanding.” (quotation omitted)); United States v.
Martin, 408 F.3d 1089, 1093 (8th Cir. 2005)(“Ineffective
assistance of counsel, where it is due to an attorney’s
negligence or mistake, has not generally been considered
an extraordinary circumstance [with respect to equitable
tolling].”).
Fleming v. Evans, 481 F.3d 1249, 1255-56 (10th Cir. 2007).
Accordingly, the Court concludes that the failure of
petitioner’s post-conviction counsel to notify him of the decision
of the Kansas Supreme Court does not entitle him to equitable tolling
in this matter.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
reopen this matter (Doc. #7) is denied.
IT IS SO ORDERED.
DATED:

This 23rd day of April, 2018, at Topeka, Kansas.

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