Opinion
Case No. 01-3179-DES
June 28, 2001
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for a report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner confined at the Hutchinson Correctional Facility, proceeds pro se.
Petitioner claims the state had no authority to vacate a journal entry converting his sentence under the Kansas Sentencing Guidelines. He also claims he was subjected to double jeopardy, in violation of the Fifth Amendment, when the journal entry allowing conversion of his sentence was vacated.
Rule 4 of the rules governing § 2254 cases provides for dismissal of a petition "[i]f it plainly appears from the face of the petition and any exhibits attached thereto that the petitioner is not entitled to relief. . . ." See 28 U.S.C. § 2254, Rule 4; see also Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991) (recognizing appropriateness of summary dismissal when a petitioner's claim is "readily susceptible to resolution without resort to the transcript.") and Kiser v. Johnson, 163 F.3d 326, 328-29 (5th Cir. 1999) (recognizing appropriateness of summary dismissal of habeas claim where claim is barred by AEDPA's one-year limitations period).
PROCEDURAL HISTORY In 1986, petitioner pled guilty to four counts of rape and one count of attempted rape. On October 7, 1996, petitioner's attorney filed a motion seeking to have petitioner's sentence converted. On November 22, 1996, a "Journal Entry Converting Sentence," imposing a controlling sentence of 146 months, was filed. On December 2, 1996, the journal entry converting petitioner's sentence was set aside. On March 6, 1997, petitioner's motion to convert sentence was overruled. There was no appeal.
A copy of the motion to convert sentence is attached to Doc. 1. While it is not a file-stamped copy, the certificate of service indicates the motion was served on October 7, 1996.
AK.S.A. 60-1507 motion was filed in 1999 and was summarily denied. On February 23, 2001, the decision was affirmed. The Kansas Supreme Court denied review on May 1, 2001.
Petitioner commenced this action on May 11, 2001.
STATUTE OF LIMITATIONS
Petitioner filed his federal petition for habeas corpus subsequent to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and is, therefore, governed by AEDPA. Williams v. Taylor, 529 U.S. 420, 429 (2000); see also Lindh v. Murphy 521 U.S. 320, 326-327 (1997) and Thomas v. Gibson, 218 F.3d 1213, 1219 (10th Cir. 2000). AEDPA imposes a one-year period for the filing of "an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d). Where a petitioner's conviction became final prior to the enactment of AEDPA, as here, the one year limitation period runs from April 24, 1996. Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998).
The limitation period is tolled during the time "a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claims is pending." 28 U.S.C. § 2244(d)(2). The limitation period is further tolled during the time for appealing the denial of post-conviction relief, regardless of whether an appeal was actually filed. Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir. 2000).
Assuming the first motion was filed on October 7, 1996, and denied on March 6, 1997, and including thirty days for an appeal under K.S.A. 60-2103, the time for filing his § 2254 petition was tolled for 181 days (i.e., from October 7, 1996, until April 5, 1997). As the following chart illustrates, petitioner had until October 22, 1997, to file his § 2254 petition.
April 25, 1996 § 2244(d) limitations period begins to run
October 7, 1996 limitations period tolled after passage of 165 days upon filing of motion to convert sentence
April 5, 1997 tolling ends upon expiration of time to appeal March 6, 1997 order denying conversion of sentence
April 6, 1997 limitations period begins to run, with 200 days remaining in limitations period
October 22, 1997 Statute of limitations expires
This action was not filed until May 11, 2001, more than three years after the statute of limitations expired. In addition, petitioner's K.S.A. 60-1507 motion was not filed until 1999. Thus, the limitations period expired long before petitioner filed either his motion pursuant to K.S.A. 60-1507 (which the state court found to be successive) or any petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
As such, it appears clear from the face of the petition that petitioner's claim is barred by § 2244.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be dismissed.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
Copies of this Report and Recommendation shall be mailed to petitioner. A copy of both this Report and Recommendation and the Petition shall also be mailed to the office of the Attorney General for the State of Kansas.
The filing of this report and recommendation terminates the referral of this case to the undersigned.