No. 5:16-CV-03192-SAC D. Kan.
HARTZ, O'BRIEN, and PHILLIPS, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY AND
Terrence L. O'Brien United States Circuit Judge
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. 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).
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).
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. 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.
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.
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).
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.
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
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
Assistance of State Post-Conviction Counsel
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).
between Kraus and his attorney shows, at most, a
misunderstanding between the two as to the filing of a state
post-conviction petition.That is not enough, especially where
Kraus waited two years to correct it and offers no
explanation for not doing so sooner. Krau ...