McRoberts (ID 117607) v. State of Kansas

Filing 3

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Petitioner's motion to proceed in forma pauperis, (Doc. #2 ), is granted. Petitioner is granted to and including August 16, 2021, to advise the Court, in writing, why this matter should not be dismissed as time-barred. Signed by U.S. Senior District Judge Sam A. Crow on 07/14/21. Mailed to pro se party Anthony McRoberts by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTHONY McROBERTS,
Petitioner,
v.

CASE NO. 21-3160-SAC

STATE OF KANSAS,
Respondent.

NOTICE AND ORDER TO SHOW CAUSE
This matter is a petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. Petitioner, an inmate at Hutchinson
Correctional Facility (HCF) serving a state sentence, proceeds pro
se and the Court grants Petitioner’s motion to proceed in forma
pauperis (Doc. 2). 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.
Background
Petitioner pled no contest to and was convicted of attempted
rape; the District Court of Wyandotte County, Kansas sentenced him
to a term of imprisonment in October 2017. (Doc. 1, p. 1.) The
Wyandotte County District Court (WCDC) Clerk’s Office has informed
this Court that Petitioner did not pursue a direct appeal from his
criminal conviction and sentence. On April 27, 2020, Petitioner
filed in WCDC a motion for post-conviction relief under K.S.A. 601507.1 The motion was denied and on June 3, 2021, Petitioner filed
In the petition,
(Doc. 1, p. 2.) He
the WCDC Clerk has
Petitioner’s civil
1

Petitioner asserts that he appealed from his conviction.
provides the case number of his appeal as 2020 CV 275, but
informed the Court that this case number is associated with
post-conviction state habeas action under K.S.A. 60-1507.

in WCDC a motion to docket his appeal out of time. It does not
appear that the WCDC has ruled on this motion.
Petitioner filed the § 2254 petition now before this Court on
July 9, 2021. (Doc. 1.)
Analysis
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)

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 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 diligence.
28 U.S.C. § 2244(d)(1).
The limitation period generally runs from the date the judgment

becomes “final.” See Preston v. Gibson, 234 F.3d 1118, 1120 (10th
Cir.

2000).

“[D]irect

review”

does

not

conclude

until

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 one-year period of
limitation begins to run the day after a conviction is final. See
Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011).
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. Holland v. Florida, 560 U.S. 631, 645 (2010).
Equitable tolling is “a rare remedy to be applied in unusual
circumstances” and a petitioner seeking equitable tolling “bears a
strong burden to show specific facts to support his claim of
extraordinary circumstances and due diligence.” Al-Yousif v. Trani,
779 F.3d 1173, 1179 (10th Cir. 2015)(internal quotation marks
omitted). It 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); McQuiggin v. Perkins,
569 U.S. 383, 391 (2013). “‘[A] garden variety claim of excusable
neglect’ . . . does not warrant equitable tolling.” Holland, 560
U.S. at 651-52 (quoting Irwin v. Dept. of Veterans Affairs, 498

U.S. 89, 96 (1990)). Similarly, “‘ignorance of the law, even for an
incarcerated pro se petitioner, generally does not excuse prompt
filing.’” Marsh, 223 F.3d at 1220 (quoting Fisher v. Johnson, 174
F.3d 710, 714 (5th Cir. 1999)).
Circumstances that may 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.” Lopez v. Trani, 628 F.3d 1228, 1229 (10th Cir.
2010)(quoting Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.
2000)). Misconduct or “egregious behavior” by an attorney also may
warrant equitable tolling. Holland, 560 U.S. at 651.
A prisoner seeking equitable tolling on the ground of actual
innocence “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.’” House, 547 U.S. at 537 (quoting Schlup, 513
U.S. at 324).
In Kansas, “[f]or crimes committed on or after July 1, 1993,
the defendant shall have 14 days after the judgment of the district
court to appeal.” K.S.A. 22-3608(c). “The final judgment in a
criminal case is the sentence.” State v. Weekes, 308 Kan. 1245,
1249 (2018) (citing State v. Van Winkle, 256 Kan. 890, 895 (1995)).

Petitioner was sentenced on October 13, 2017, so he had until
October 27, 2017, to appeal. The AEDPA’s one-year limitation period
began to run on October 28, 2017 and expired on October 28, 2018.
Because Petitioner did not file his federal habeas petition
until July 9, 2021, this action is not timely and is subject to
dismissal unless petitioner can establish grounds for equitable
tolling.2 The Court therefore directs petitioner to show cause on
or before August 16, 2021, why this matter should not be dismissed
due to his failure to commence this action within the one-year
limitation period. The failure to file a timely response may result
in the dismissal of this matter without additional notice.
IT IS THEREFORE ORDERED THAT Petitioner’s motion to proceed in
forma pauperis, (Doc. 2), is granted.
IT IS FURTHER ORDERED THAT

Petitioner is granted

to and

including August 16, 2021, to advise the Court, in writing, why
this matter should not be dismissed as time-barred.
IT IS SO ORDERED.
DATED:

This 14th day of July, 2021, at Topeka, Kansas.

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

Although the limitation period may be tolled
postconviction or other collateral proceedings
before the Court indicates that Petitioner did
until 2020, well after the one-year limitation
petition had expired. (Doc. 1-1, p. 1-6.)
2

during properly filed
in state court, the information
not file his 60-1507 motion
period for a federal habeas