Toothman (ID 110151) v. Ellsworth Correctional Facility
MEMORANDUM AND ORDER ENTERED: This matter is dismissed as time-barred and for failure to comply with a court order pursuant to Fed. R. Civ. P. 41(b). No certificate of appealability will issue. Signed by U.S. Senior District Judge Sam A. Crow on 01/10/22. Mailed to pro se party Larry L. Toothman by regular mail. (smnd)
Case 5:21-cv-03271-SAC Document 4 Filed 01/10/22 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LARRY L. TOOTHMAN,
CASE NO. 21-3271-SAC
MEMORANDUM AND ORDER
This matter is a petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. For the reasons explained below, the
Court will dismiss the petition without prejudice.
In December 2014, a jury convicted Petitioner of sex crimes
against his stepdaughter. See State v. Toothman, 2017 WL 5016206,
at *1-2 (Kan. Ct. App. 2017), rev. denied Oct. 11, 2019. On January
22, 2015, the Saline County District Court sentenced Petitioner to
a controlling sentence of 653 months, to be served consecutively to
a 653-month controlling sentence imposed for earlier convictions of
sex crimes against Petitioner’s niece. Petitioner pursued a direct
convictions for the crimes against his step-daughter; the Kansas
Supreme Court (KSC) denied his petition for review on October 11,
2019. Toothman, 2017 WL 5016206, at *1.
Petitioner filed this federal habeas petition on November 29,
2021. (Doc. 1.) The following day, the Court mailed to Petitioner
a notice informing him that his petition was deficient due to his
failure to either pay the statutory filing fee of $5.00 or submit
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a motion to proceed in forma pauperis (IFP). (Doc. 2.) The notice
advised Petitioner that he needed to cure the deficiency and if he
did not pay the fee or submit an IFP motion within 30 days, this
action might be dismissed without further notice. Id.
The Court also conducted an initial review of the petition as
required by Rule 4 of the Rules Governing Section 2254 Case in the
United States District Courts. On December 1, 2021, the Court issued
a Notice and Order to Show Cause (the NOSC) addressing the apparent
untimeliness of this matter. After setting forth the relevant law,
the Court explained:
“In this case, Petitioner’s state-court direct
appeal from 2013-CR-437 concluded on October 11, 2019
when the KSC denied his petition for review. At that
point, Petitioner had 90 days to file in the United States
Supreme Court a petition for writ of certiorari. There is
no record that he did so. Accordingly, on approximately
January 10, 2020, the day after the 90 days expired, the
one-year period in which Petitioner could timely file a
federal habeas petition began.” (Doc. 3, p. 5.)
limitation period, so the one-year period in which Petitioner could
timely file a federal habeas petition expired on approximately
January 10, 2021. Id. at 5-6. Since Petitioner did not file his
petition until November 29, 2021, this matter is untimely unless
Petitioner can show that he is entitled to equitable tolling or
that he qualifies for the actual innocence exception to the oneyear limitation period. Id. at 6. The NOSC explained when equitable
tolling and/or the actual innocence exception are available to
petitioners and the Court allowed Petitioner until January 3, 2022
to inform the Court in writing why his petition should not be
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dismissed as time-barred. Id. at 6-7.
Petitioner has not filed a response to the NOSC or otherwise
challenged the Court’s conclusion that this matter is time-barred.
The time to do so has now expired. The Court therefore concludes
that this matter should be dismissed as untimely.
Petitioner also has failed to comply with the Court’s order to
either file a motion to proceed IFP or pay the $5.00 statutory
filing fee on or before December 30, 2021. Under Federal Rule of
Civil Procedure 41(b), a district court may dismiss an action “if
the plaintiff fails to prosecute or to comply with these rules or
a court order.” Fed. R. Civ. P. 41(b); See also Olsen v. Mapes, 333
F.3d 1199, 1204 n.3 (10th Cir. 2003) (noting that Rule 41(b) “has
long been interpreted to permit courts to dismiss actions sua sponte
for a plaintiff’s failure . . . to comply with the . . . court’s
orders”). Thus, the Court concludes that this matter also should be
dismissed under Rule 41(b).
Rule 11 of the Rules Governing Section 2254 Cases requires the
Court to issue or deny a certificate of appealability (COA) upon
entering a final adverse order. “When the district court denies a
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 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 rulings in this matter are
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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 and for failure to comply with a court order pursuant to
Fed. R. Civ. P. 41(b). No certificate of appealability will issue.
IT IS SO ORDERED.
This 10th day of January, 2022, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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