Raimo v. Johnson County Sheriff

Filing 3

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Petitioner is granted to and including June 21, 2018, to show cause as directed. The failure to file a timely response may result in the dismissal of this matter without additional prior notice. Signed by U.S. Senior District Judge Sam A. Crow on 05/25/18. Mailed to pro se party Mark Raimo by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARK RAIMO,
Petitioner,
v.

CASE NO. 18-3131-SAC

SHERIFF, JOHNSON COUNTY, KANSAS,
Respondent.

NOTICE AND ORDER TO SHOW CAUSE
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se.
Background
Petitioner was convicted in 2016 of crimes including burglary
and sentenced to a term of 72 months. He entered a guilty plea, and
he filed no appeal or post-conviction action. In this action, he
challenges his conviction on the grounds of ineffective assistance
of counsel, due process violations, and an illegal sentence.
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)

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

(C)

(D)

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 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.
Where a prisoner seeks equitable tolling on the ground of actual
innocence, the prisoner “must establish 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, 526-37 (2006)(quoting Schlup v. Delo, 513 U.S.
298, 327 (1995)). The prisoner must come forward with “new reliable
evidence – whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence – that was not
presented at trial.” Schlup, id. at 324.
Because petitioner did not commence this action until May 2018,
this matter is not timely. Because he did not file an appeal or a
post-conviction action, there is no basis for statutory tolling.
Accordingly, petitioner may proceed in this matter only if he shows
that he is entitled to equitable tolling.
Next, because petitioner has not presented his claims to the
state courts, the claims are subject to procedural default. A federal
habeas court may not review claims “that have been defaulted in state
court … unless the petitioner can demonstrate cause and prejudice or
a fundamental miscarriage of justice.” English v. Cody, 146 F.3d 1257,
1259 (10th Cir. 1988)(citing Coleman v. Thompson, 501 U.S. 722, 749-50
(1991)). Petitioner’s failure to present his habeas claims to the
state courts bars review unless he can show cause and prejudice or
a fundamental miscarriage of justice.

To show cause, petitioner must show that “some objective factor
external to the defense impeded … efforts to comply with the State’s
procedural rules.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Next,
to show prejudice, a petitioner must show “‘actual prejudice’
resulting from the errors of which he complains.” United States v.
Frady, 456 U.S. 152, 168 (1982).
In the alternative, petitioner may excuse his procedural default
by showing the failure to consider his claims will result in a
fundamental miscarriage of justice. Under this exception, the
petitioner must present a colorable showing of factual innocence, a
threshold that requires a showing that “it is more likely than not
that no reasonable juror would have found petitioner guilty beyond
a reasonable doubt.” Demarest v. Price, 130 F.3d 922, 941-42 (10th Cir.
1997)(citations omitted).
Order to Show Cause
Because it appears this matter is barred by the one-year
limitation period and by petitioner’s procedural default, the Court
directs petitioner to show cause why this matter should not be
dismissed. Petitioner must show both grounds for equitable tolling
of the limitation period and either cause and prejudice or a
fundamental miscarriage of justice to excuse his procedural default.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner is granted to
and including June 21, 2018, to show cause as directed. The failure
to file a timely response may result in the dismissal of this matter
without additional prior notice.

IT IS SO ORDERED.
DATED:

This 25th day of May, 2018, at Topeka, Kansas.

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