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Kraus v. Heimgartner

United States Court of Appeals, Tenth Circuit

March 8, 2017

MICHAEL KRAUS, Petitioner - Appellant,

         D.C. No. 5:16-CV-03192-SAC D. Kan.

          Before HARTZ, O'BRIEN, and PHILLIPS, Circuit Judges.


          Terrence L. O'Brien United States Circuit Judge

         Michael Kraus kidnapped and murdered Michael High, apparently over drug money. He was convicted by a Kansas jury of felony murder and aggravated kidnapping in 1999. He was sentenced to life imprisonment for the murder and 184 months for the kidnapping.[1] In July 2001, the Kansas Supreme Court affirmed his convictions and sentences on direct appeal. See State v. Kraus, 26 P.3d 636 (Kan. 2001).

         Over five years later, in November 2006, Kraus filed a motion for a new trial based on newly discovered evidence. The state trial court treated the motion as a petition for post-conviction relief. For some unknown reason, the court did not act on the petition. During the period of inactivity (in September 2009), Kraus filed an amended petition for post-conviction relief. Later both the original and amended petition were dismissed as untimely. The Kansas Court of Appeals affirmed on May 1, 2015; in doing so, it rejected his actual innocence claim and his attempt to blame his attorney for the late filings. See Kraus v. State, No. 111264, 2015 WL 2131632 (Kan.Ct.App. May 1, 2015).

         On September 12, 2016, Kraus filed his 28 U.S.C. § 2254 habeas petition raising three claims: (1) prosecutorial misconduct; (2) actual innocence; and (3) ineffective assistance of trial counsel. The district judge sua sponte dismissed the petition as untimely. See Day v. McDonough, 547 U.S. 198, 209 (2006) ("[W]e hold that district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition."). He concluded Kraus's convictions became final on October 13, 2001, when the time to seek certiorari review in the United States Supreme Court expired.[2] 28 U.S.C. § 2244(d)(1)(A). Kraus had one year (until October 2002) in which to file his § 2254 petition. Id. It eventually came, but almost 14 years later. The judge decided he was not eligible for statutory tolling under 28 U.S.C. § 2244(d)(2) because his state petitions for post-conviction relief were filed after the federal limitations had already expired. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) ("Only state petitions for post-conviction relief filed within the one year [limitations period] will toll the statute of limitations."). Nor was he entitled to equitable tolling-although the form § 2254 petition directed Krause to explain why the statute of limitations did not bar his claims if his convictions became final over one year ago, he provided nothing.

         Kraus sought a certificate of appealability (COA) in order to appeal from the dismissal. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The district judge denied a COA so he renews his request here.

         To obtain a COA, Kraus must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Because the district court's ruling rests on procedural grounds, he must show both 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).

         Relying on Day, the judge, sua sponte, dismissed the petition as untimely. 547 U.S. at 209. Day permits a trial court to consider the timeliness of a § 2254 petition sua sponte. Id. But "before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions." Id. at 210. Kraus was not afforded such an opportunity.

         Be that as it may, the judge also concluded Kraus was not entitled to equitable tolling of the limitations period because he had not raised any grounds for equitable tolling in his petition (even though the form petition specifically required him to do so). The problem with that is "a § 2254 petitioner does not bear a heightened burden of pleading timeliness in his application." Kilgore v. Attorney Gen. of Colo., 519 F.3d 1084, 1089 (10th Cir. 2008). Accordingly, a "district court cannot dismiss a habeas petition as untimely unless untimeliness is clear from the face of the petition, or unless the state establishes untimeliness as an affirmative defense." Id. at 1085. Kraus's petition clearly reveals it was not filed within the one-year limitations period and statutory tolling does not apply. However, it does not on its face foreclose the possibility of equitable tolling. And the judge did not afford him an opportunity to present any grounds for equitable tolling. Cf. Vasquez Arroyo v. Starks, 589 F.3d 1091, 1097 (10th Cir. 2009) ("[A] district court may not sua sponte dismiss a prisoner's § 1983 action on the basis of the statute of limitations unless it is clear from the face of the complaint that there are no meritorious tolling issues, or the court has provided the plaintiff notice and an opportunity to be heard on the issue.").

         Interestingly, Kraus does not specifically complain about the procedural irregularities. Rather, his only arguments attempt to excuse the time-bar: (1) his attorney was ineffective for not filing his state post-conviction petition sooner and for not informing him of the deadline for filing the petition; (2) he is actually innocent, and (3) his pro se status entitles him to relief from the time-bar. That said, we extend a reasonably solicitous reading of pro se filings and, although he does not clearly label them, his arguments speak to equitable tolling of the limitations period. See Holland v. Florida, 560 U.S. 631, 645, 649 (2010) (§ 2244(d)'s statute of limitations "is subject to equitable tolling" if the petitioner "shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing") (quotation marks omitted). Solicitude ends with a fair reading of the arguments; it does not presage a result. Kraus is not entitled to equitable tolling.[3]

         Ineffective Assistance of State Post-Conviction Counsel

         While there is no constitutional right to an attorney in state post-conviction proceedings, Coleman v. Thompson, 501 U.S. 722, 756-57 (1991), serious misconduct by post-conviction counsel may warrant equitable tolling. See, e.g., Holland, 560 U.S. at 651-52. On the other hand, "a garden variety claim of excusable neglect" by post-conviction counsel does not. Id. (quotation marks omitted).

         Correspondence between Kraus and his attorney shows, at most, a misunderstanding between the two as to the filing of a state post-conviction petition.[4]That is not enough, especially where Kraus waited two years to correct it and offers no explanation for not doing so sooner. Krau ...

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