Waller (ID 10076) v. Langford

Filing 7

MEMORANDUM AND ORDER ENTERED: This matter is dismissed as time-barred. No certificate of appealability will issue. Signed by U.S. Senior District Judge Sam A. Crow on 11/18/21. Mailed to pro se party Anthony A. Waller by regular mail. (smnd)

Case 5:21-cv-03246-SAC Document 7 Filed 11/18/21 Page 1 of 6

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

CASE NO. 21-3246-SAC

DON LANGFORD,
Respondent.

MEMORANDUM AND ORDER

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
explained below, the Court will dismiss this matter as untimely.
Background
In March 2011, a jury in Reno County, Kansas, convicted
Petitioner of first-degree murder and aggravated kidnapping. The
district court sentenced him to a controlling sentence of life in
prison plus 285 months. On June 6, 2014, the Kansas Supreme Court
(KSC) affirmed the convictions and sentence and, on August 27, 2014,
it denied Petitioner’s timely motion for rehearing. State v. Waller,
299 Kan. 707 (Kan. S. Ct. 2014).
The online records of the Reno County District Court reflect
that on June 24, 2015, Petitioner filed a timely motion for relief
under K.S.A. 60-1507, which the district court denied. Petitioner
appealed the denial to the Kansas Court of Appeals (KCOA), which
affirmed on October 17, 2017; the KSC denied review on April 16,

Case 5:21-cv-03246-SAC Document 7 Filed 11/18/21 Page 2 of 6

2018. Waller v. State, 2017 WL 4847862 (Kan. Ct. App. 2017), rev.
denied April 26, 2018. On May 25, 2018, Petitioner filed a second
60-1507 motion. The district court dismissed the matter four days
later and the KCOA summarily affirmed the dismissal under Kansas
Supreme Court Rule 7.041 by an order issued October 10, 2019.
Petitioner filed a third 60-1507 motion on July 30, 2020, which the
district

court

dismissed

on

August

12,

2020.

The

KCOA

again

summarily affirmed the dismissal under Rule 7.041 by order issued
March 18, 2021. Petitioner filed his petition for writ of habeas
corpus in this Court on October 22, 2021. (Doc. 1.)
The Court conducted an initial review of the petition under
Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts and, on October 26, 2021, issued a notice
and order to show cause (NOSC). (Doc. 3.) The NOSC explained the
one-year limitation period established by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) in 28 U.S.C. § 2244(d)
and the ways in which that period is calculated, including the
provisions for equitable and statutory tolling as well as the actual
innocence

exception

to

the

limitation

period.

See

Section

2244(d)(1) and (d)(2); House v. Bell 547 U.S. 518, 536-37 (2006)
(explaining actual innocence exception); Gibson v. Klinger, 232
F.3d 799, 808 (10th Cir. 2000) (explaining equitable tolling).
Applying these legal principles, the NOSC concluded that this
petition appears untimely. The Court therefore directed Petitioner
to show cause why this matter should not be dismissed as timebarred, either by demonstrating an entitlement to equitable tolling
of

the

limitation

period

or

by

establishing

that

innocence exception to the limitation period applies.

the

actual

Case 5:21-cv-03246-SAC Document 7 Filed 11/18/21 Page 3 of 6

Petitioner filed his response to the NOSC on November 12, 2021.
(Doc. 6.) Therein, he does not challenge the Court’s calculation of
the relevant timeline or its conclusion that this petition is
untimely filed. Rather, he first asserts that his efforts to pursue
this

case

have

been

hampered

by

the

effects

of

the

COVID-19

pandemic. Liberally construing the response, as is appropriate
since Petitioner proceeds pro se, the Court considers this an
argument in support of equitable tolling.
As explained in the NOSC, equitable tolling is available only
in rare and exceptional circumstances “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). The events
that Petitioner references to support the argument for equitable
tolling occurred after February 2020, the latest date on which the
AEDPA

deadline

passed.

In

addition,

Petitioner

has

failed

to

specifically explain how the circumstances he alleges—such as being
on lockdown and not having access to the prison law library—warrant
equitable tolling. See Donald v. Pruitt, 853 Fed. Appx. 230, 234
(10th Cir. 2021) (“[Petitioner] is not entitled to equitable tolling
based on his allegedly limited access to the law library in the
wake of COVID-19.”); Phares v. Jones, 470 F. Appx. 718, 719 (10th
Cir. 2012) (“The mere fact of a prison lockdown . . . does not
qualify as extraordinary absent some additional showing that the
circumstances

prevented

him

from

timely

filing

his

habeas

petition.”). Thus, Petitioner has not shown that equitable tolling
is warranted.
Petitioner also asserts that the AEDPA time limitation should

Case 5:21-cv-03246-SAC Document 7 Filed 11/18/21 Page 4 of 6

not apply because the State improperly withheld evidence from the
defense that, after Petitioner was convicted and sentenced, it
entered into a deal with a key State witness who had testified at
Petitioner’s trial.1 (Doc. 6.) Liberally construing the response,
it appears that Petitioner is asserting that the actual innocence
exception to the AEDPA deadline applies here.
As explained in the NOSC, to obtain the actual innocence
exception, a 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 v. Delo, 513 U.S. 298, 324 (1995).
Petitioner

then

“must

establish

that,

in

light

of

[the]

new

evidence, ‘it is more likely than not that no reasonable juror would
have found [him] guilty beyond a reasonable doubt.’” See House v.
Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup, 513 U.S. at
327)). In the present case, Petitioner has failed to meet this
burden.
First, Petitioner has not identified to this Court any evidence
that supports his assertion that the State made a deal with a key
witness. Because he has not identified specific evidence, the Court
cannot

conclude

that

he

has

come

forward

with

“new

reliable

evidence.” Second, Petitioner does not specifically identify the
witness in his response, although the petition indicates that it
was likely Mr. Coons. (See Doc. 1, p. 6.) If the witness to whom
Petitioner also appears to assert that the AEDPA deadline does not apply to
him because the Kansas Supreme Court suspended certain deadlines for filing in
Kansas courts during and due to the COVID-19 pandemic. (Doc. 6, p. 3; Doc. 6-1,
p. 1-8.) Petitioner does not provide any legal authority that supports the notion
that the Kansas Supreme Court or Kansas Legislature has the power to suspend
federal time requirements such as those in AEDPA. Moreover, the administrative
order and legislation Petitioner has attached to his response do not, by their
own plain language, apply to deadlines set by federal statute.
1

Case 5:21-cv-03246-SAC Document 7 Filed 11/18/21 Page 5 of 6

Petitioner refers is Mr. Vasie Coons, it is not more likely than
not that evidence impeaching Mr. Coons’ credibility would have
resulted in Petitioner’s acquittal. According to the KCOA’s opinion
in Petitioner’s 60-1507 proceeding, “both [Vasie Coons and Chauncey
Grissom] admitted to being present when Waller beat Haines to
death.” See Waller v. State, 2017 WL 4847862, at *1. Thus, even if
Mr. Coons was impeached with evidence that he had struck a deal
with the State, it is not “more likely than not that no reasonable
juror would have found [him] guilty beyond a reasonable doubt.” See
House, 547 U.S. at 536-37. Accordingly, Petitioner has failed to
establish that the actual innocence exception to the AEDPA time
limitation applies here.
As the Court concluded in the NOSC, this matter was filed
outside of the permissible time period. Even liberally construing
Petitioner’s response to the NOSC, Petitioner has not established
circumstances that warrant equitable tolling, nor has he come
forward with the type of new evidence that justifies applying the
actual innocence exception to the federal habeas limitation period.
The Court will therefore dismiss this matter as untimely.
Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability (COA)
upon entering a final adverse order. A COA may issue only if the
petitioner

made

a

substantial

showing

of

the

denial

of

a

constitutional rights. 28 U.S.C. § 2253(c)(2). “When the district
court

denies

a

habeas

petition

on

procedural

grounds

without

reaching the prisoner’s underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid

Case 5:21-cv-03246-SAC Document 7 Filed 11/18/21 Page 6 of 6

claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). The failure to satisfy either prong requires the denial
of a COA. Id. at 485. The Court concludes that its procedural ruling
in this matter is not subject to debate among jurists of reason.
Therefore,

the

Court

declines

to

issue

a

certificate

of

appealability.

IT IS THEREFORE ORDERED that this matter is dismissed as timebarred. No certificate of appealability will issue.
IT IS SO ORDERED.
DATED:

This 18th day of November, 2021, at Topeka, Kansas.

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