Opinion
Case No. 01-3203-DES
August 7, 2001
Petitioner, a state prisoner confined at the El Dorado Correctional Facility, proceeds pro se.
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 makes three claims: 1) that he was denied effective assistance of counsel; 2) that the trial court lacked jurisdiction to impose the sentence; and 3) that his plea was not knowing and voluntary.
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. . . ." 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
On July 23, 1993, petitioner was charged in Sedgwick County with one count of premeditated murder, three counts of rape, three counts of criminal sodomy, four counts of aggravated kidnapping, seven counts of kidnapping, one count of burglary, and one count of criminal possession of a firearm. Petitioner was sentenced to life imprisonment without parole eligibility for forty years. On March 8, 1996, petitioner's convictions were affirmed. State v. Williams, 259 Kan. 432 (1996). On October 7, 1996, the United States Supreme Court denied certiorari.
On July 16, 1999, a K.S.A. 60-1507 motion was filed. The district court denied relief on November 3, 1999. The district court decision was affirmed. Williams v. State, No. 84,644 (Kan.Ct.App. Mar. 2, 2001) (unpublished). The Kansas Supreme Court denied review on May 2, 2001.
Petitioner commenced this action on May 21, 2001.
STATUTE OF LIMITATIONS
Petitioner filed his federal petition for a writ of 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); Lindh v. Murphy 521 U.S. 320, 326-327 (1997); 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)(1). The one-year limitation does not begin to run until judgment is final, as evidenced "by the conclusion of direct review." 28 U.S.C. § 2244(d)(1)(A).
Additionally, the limitation period is tolled during the time "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claims is pending." 28 U.S.C. § 2244(d)(2).
Respondents argue that the instant petition is time-barred as it was filed outside the one-year statute of limitations (Doc. 7). Petitioner has filed a Traverse (Doc. 10) without directly addressing the statute of limitations issue.
Discussion
Petitioner's direct review was final on October 7, 1996. Thus, the time to file for federal habeas relief expired no later than October 7, 1997. Since the motion for state post-conviction relief was not filed until July 16, 1999 (long after the statute of limitations had expired), the post-conviction proceedings could not "toll" the statute of limitations.
Finding petitioner's habeas action was filed after the statute of limitations expired, petitioner's claims are barred by § 2244(d)(1).
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 and counsel of record.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.