Lee v. Schnurr et al
ORDER TO SHOW CAUSE ENTERED: Petitioner is granted until December 16, 2020, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why his habeas claims should not be dismissed due to his failure to commence this action within the one-year limitation period. Signed by U.S. Senior District Judge Sam A. Crow on 11/16/2020. (jal)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 20-3247-SAC
DAN SCHNURR, Warden,
Hutchinson Correctional Facility,
ORDER TO SHOW CAUSE
This matter is a petition for writ of habeas corpus filed pursuant to 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. For the reasons that follow, the Court
directs Petitioner to show cause why this matter should not be dismissed.
Petitioner was convicted by a jury of first-degree murder and criminal possession of a
firearm. State v. Lee, Case No. 96–CR–1375 (Sedgwick County District Court). Petitioner was
sentenced in 1997 to a hard 40 sentence. Petitioner appealed and the Kansas Supreme Court
affirmed on March 5, 1999. State v. Lee, 266 Kan. 804, 977 P.2d 263 (1999).
Petitioner filed his first state habeas petition in Sedgwick County District Court (Case
No. 00–CV–1206) on April 17, 2000, which remained pending until the Kansas Supreme Court
denied review in 2001. Lee v. State, No. 86,058 (Kan. Ct. App. Oct. 12, 2001), rev. denied 272
Kan. 1418 (2001). Petitioner filed four additional state petitions or motions in Sedgwick County
District Court: the second petition (Case No. 04–CV–2700) was filed on June 25, 2004, and the
Kansas Court of Appeals affirmed on July 20, 2007 (Case No. 96,286); the first motion to correct
illegal sentence (Case No. 96–CR–1375) was filed on July 28, 2008, and remained pending until
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the Kansas Supreme Court affirmed on January 21, 2011 (State v. Lee, Case No. 101,638, 245
P.3d 1056 (Table), 2011 WL 433533); the second motion to correct illegal sentence was filed on
August 11, 2014, and remained pending through April 29, 2016, when the Kansas Supreme
Court reversed the district court’s decision granting the motion (State v. Lee, 304 Kan. 416, 372
P.3d 415 (April 29, 2016); and the third petition (Case No. 16–CV–2009) was filed on
September 1, 2016, and remained pending through February 28, 2019, when the Kansas Supreme
Court denied review (Lee v. State, Case No. 117,813, 419 P.3d 81 (Table), 2018 WL 2271398
(Kan. Ct. App. May 18, 2018), rev. denied (Feb. 28, 2019)).
Petitioner filed the instant § 2254 petition in this Court on September 13, 2020.
Petitioner alleges as Ground One that the Supreme Court’s decision in Alleyne announced a new
substantive rule of constitutional law, which must be applied retroactively to cases on collateral
review. As Ground Two, Petitioner claims in the alternative that Alleyne announced a watershed
rule of criminal procedure that must be applied retroactively to cases on collateral review under
Teague v. Lane. Petitioner alleges that he raised the issues in Grounds One and Two in Case
This action is subject to the one-year limitation period established by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) in 28 U.S.C. § 2244(d).
(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
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;
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(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
28 U.S.C. § 2244(d)(1).
The one-year limitation period generally runs from the date the judgment becomes
“final,” as provided by § 2244(d)(1)(A). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir.
2000). Under Supreme Court law, “direct review” concludes when the availability of direct
appeal to the state courts and request for review to the Supreme Court have been exhausted.
Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). The Rules of the U.S. Supreme Court allow
ninety days from the date of the conclusion of direct appeal to seek certiorari. Sup. Ct. R. 13(1).
“[I]f a prisoner does not file a petition for writ of certiorari with the United States Supreme Court
after [his] direct appeal, the one-year limitation period begins to run when the time for filing a
certiorari petition expires.” United States v. Hurst, 322 F.3d 1256, 1259 (10th Cir. 2003). The
limitation period begins to run the day after a conviction becomes final.
Dinwiddie, 642 F.3d 902, 906–07 n.6 (10th Cir. 2011).
The statute also contains a tolling provision:
The time during which a properly filed application for State postconviction 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.
See Harris v.
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28 U.S.C. § 2244(d)(2).
Finally, the one-year limitation period is subject to equitable tolling “in rare and
exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (2000) (citation 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, 232 F.3d at
808 (citation omitted).
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,
536–37 (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, 513
U.S. at 324.
Petitioner’s conviction and sentence were affirmed by the Kansas Supreme Court on
March 5, 1999. Petitioner had ninety days from the date of the conclusion of direct appeal to
seek certiorari. Where a prisoner declines to seek review in the Supreme Court, the limitation
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period begins to run the day after the ninety-day period for seeking review in the Supreme Court
expires. See Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Because Petitioner
did not seek review in the Supreme Court, his time began to run on or about June 4, 1999, and
ran until he filed his first state habeas action on April 17, 2000. Thus, approximately 315 days
ran prior to his first state habeas action, leaving 50 days remaining. Even if any periods between
his state petitions and motions are not counted, Petitioner’s last petition ceased to be pending on
February 28, 2019, when the Kansas Supreme Court denied review. Petitioner did not file the
instant federal petition until September 13, 2020, more than a year later.
Petitioner argues that Alleyne was not decided until 2013, and “[t]he one-year statute of
limitations should be equitably tolled because the Petitioner is innocent of the Hard 40 sentence,
as the statute under which the sentence was imposed was unconstitutionally void from its
inception, and any sentence imposed under said statute is void ab initio.” (Doc. 1, at 12.)
Petitioner made the same arguments in his state habeas petition. The state district court
denied Petitioner’s state habeas petition in Case No. 16CV2009, based on the Kansas Supreme
Court’s decision in Kirtdoll v. State, No. 114,465 (Kan. May 12, 2017). Lee v. State, Case
No. 16CV2009 (Sedgwick County District Court, April 21, 2017). The district court noted that
the court in Kirtdoll held that the rule of law declared in Alleyne “cannot be applied retroactively
to cases that were final when Alleyne was decided.” Id. The court then found that Petitioner’s
case was final when Alleyne was decided and “Alleyne’s prospective-only change in the law
cannot provide the exceptional circumstances that would justify a successive 60-1507 motion.”
Id. The Kansas Court of Appeals affirmed the denial of Petitioner’s state habeas petition. Lee v.
State, No. 117,813, 419 P.3d 81(Table) (Kan. Ct. App. May 18, 2018).
Case 5:20-cv-03231-SAC Document 3 Filed 11/16/20 Page 6 of 7
Plaintiff’s claims are based on his argument that the Kansas state courts improperly ruled
that the Supreme Court’s decision in Alleyne did not apply retroactively to provide Plaintiff with
relief. The Tenth Circuit has likewise held that Alleyne does not apply retroactively. See United
States v. Stang, 561 F. App’x 772, 773 (10th Cir. May 28, 2014) (unpublished) (stating that
“[w]e have held that, although the Supreme Court in Alleyne did recognize a new rule of
constitutional law, the Supreme Court did not hold that the new rule was retroactively applicable
to cases on collateral review”) (citing In re Payne, 733 F.3d 1027, 1029–30 (10th Cir. 2013));
see also United States v. Rogers, 599 F. App’x 850, 851 (10th Cir. April 17, 2015) (unpublished)
(stating that “[b]ut Alleyne wasn’t decided until after Mr. Roger’s sentencing, we have held that
Alleyne doesn’t apply retroactively on collateral review”).
The Rooker-Feldman doctrine establishes that a federal district court lacks jurisdiction to
review a final state court judgment because only the Supreme Court has jurisdiction to hear
appeals from final state court judgments. See Bear v. Patton, 451 F.3d 639, 641 (10th Cir.
2006). The doctrine prevents a party who lost in state court proceedings from pursuing “what in
substance would be appellate review of the state judgment in a United States district court, based
on the losing party’s claim that the state judgment itself violates the loser’s federal rights.”
Johnson v. DeGrandy, 512 U.S. 997, 1005-06 (1994).
The instant Petition is not timely and is subject to dismissal unless Petitioner can
demonstrate grounds for equitable or statutory tolling. The Court will direct him to show cause
why his Petition should not be dismissed.
IT IS THEREFORE ORDERED THAT Petitioner is granted until December 16,
2020, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States
Case 5:20-cv-03231-SAC Document 3 Filed 11/16/20 Page 7 of 7
District Judge, why his habeas claims should not be dismissed due to his failure to commence
this action within the one-year limitation period.
IT IS SO ORDERED.
Dated November 16, 2020, in Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge
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