                                                                                  FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                                  TENTH CIRCUIT                              March 8, 2017

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
MICHAEL KRAUS,

             Petitioner - Appellant,

v.                                                         No. 16-3325
                                                  (D.C. No. 5:16-CV-03192-SAC)
JAMES HEIMGARTNER; ATTORNEY                                  (D. Kan.)
GENERAL OF KANSAS,

             Respondents - Appellees.




            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


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


      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



      1
         Kraus must serve a minimum of 15 years in prison for the murder before he is
eligible for parole. The kidnapping sentence was ordered to run consecutive to the
murder sentence.
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)

       2
          See Rule 13.1, Rules of the United States Supreme Court (requiring certiorari
petitions to be filed within 90 days after entry of judgment); see also Locke v. Saffle,
237 F.3d 1269, 1273 (10th Cir. 2001) (holding “a petitioner’s conviction is not final and
the one-year limitation period for filing a federal habeas petition does not begin to run
until—following a decision by the state court of last resort—after the United States
Supreme Court has denied review, or, if no petition for certiorari is filed, after the time
for filing a petition for certiorari with the Supreme Court has passed”) (quotation marks
omitted).

                                            -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

                                             -3-
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

                                            -4-
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



       3
          In Vasquez Arroyo, we reversed and remanded a judge’s sua sponte dismissal of
a § 1983 complaint on statute of limitations grounds because it was not clear from the
face of the complaint that tolling was not applicable and the judge did not provide the
plaintiff an opportunity to address the issue. 589 F.3d at 1098. A remand is not
necessary in this case. Vasquez Arroyo’s appellate filings provided no arguments for
tolling; indeed, we sua sponte suggested tolling may be applicable. 589 F.3d at 1097; id.
at 1098 (Briscoe, J., concurring in part, dissenting in part). Therefore, there was nothing
for us to review. To the contrary, Kraus raises grounds for equitable tolling in his COA
application.
        Moreover, after Vasquez Arroyo, the Supreme Court decided an appellate court,
like a district court, may sua sponte dismiss a habeas petition as untimely unless the State
has waived the issue. Wood v. Milyard, 566 U.S. 463, 132 S. Ct. 1826, 1834-35 (2012)
(“[C]ourts of appeals, like district courts, have the authority—though not the obligation—
to raise a forfeited timeliness defense on their own initiative.”). There is no waiver in this
case. We can, therefore, sua sponte address the untimeliness issue, including equitable
tolling. And, unlike the judge’s sua sponte dismissal in this case, our sua sponte review
is not without notice or an opportunity to respond—the dismissal order placed Kraus on
notice and he has addressed the untimeliness/equitable tolling issue in his COA
application.

                                            -5-
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. Kraus, 2015 WL 2131632, at *2. Diligence is

required. Holland, 560 U.S. at 649.

       Moreover, Kraus’s first letter to his attorney is dated November 2002, one month

after the federal limitations period had already expired. See Holly v. Bravo, 612 F. App’x

922, 925 (10th Cir. 2015) (unpublished) (counsel’s failure to turn over case file to allow

Holly to pursue state habeas relief did not constitute grounds for equitable tolling because

the federal limitations period had expired well before Holly began work on his state

habeas petition).

       Finally, the claimed failure of counsel to tell Kraus the deadline for filing his state

habeas petition provides no excuse for his failure to meet the deadline for filing his

federal habeas petition. Even had he timely filed his state habeas petition (he had until

June 2004), his federal petition would not necessarily have been timely (it was due in

October 2002). See Floyd v. Ploughe, 507 F. App’x 771, 773 (10th Cir. 2013)



       4
          Kraus did not provide the correspondence with his COA application.
Nevertheless, the Kansas Court of Appeals addressed it in its decision affirming the
dismissal of his post-conviction petitions as untimely. Kraus, 2015 WL 2131632, at *2.
The correspondence revealed: (1) on November 19, 2002, Kraus allegedly wrote a letter
to his attorney informing him that he wanted to review anything prior to it being filed;
(2) on January 17, 2003, the attorney told Kraus he was “under the impression” that he
was not to file a petition until he received a draft from Kraus; and (3) on February 11,
2005, Kraus told the attorney he was still gathering evidence for his petition and would
be done soon and expressed frustrations with impediments he faced in the collection of
evidence, none of which were attributable to his attorney. Kraus, 2015 WL 2131632, at
*2.

                                             -6-
(unpublished) (rejecting argument that equitable tolling was warranted because state

petitions for post-conviction relief were timely; “[t]he time that state courts provide for

filing state post-conviction motions . . . does not extend the time to file a federal habeas

action”).

       Actual Innocence

       “[A]ctual innocence, if proved, serves as a gateway through which a petitioner

may pass whether the impediment is a procedural bar . . . or . . . expiration of the statute

of limitations.” See McQuiggin v. Perkins, --- U.S. ---, 133 S. Ct. 1924, 1928 (2013).

But actual innocence claims are rarely successful. Id.; see also Schlup v. Delo, 513 U.S.

298, 324 (1995). This case is no exception.

       Kraus claims he did not kill High but blames Danny Eaton and Andrew Rivera.

He says Eaton and Rivera’s girlfriends said so, Eaton himself confessed to police, and a

jailhouse informant heard Eaton and Rivera confess. But a viable claim of actual

innocence requires a petitioner “to support his allegations of constitutional error with new

reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S.

at 324; see also Perkins, 133 S. Ct. at 1928 (“A petitioner does not [establish actual

innocence] unless he persuades the district court that, in light of the new evidence, no

juror, acting reasonably, would have voted to find him guilty beyond a reasonable

doubt.”) (quotation marks omitted) (emphasis added). Kraus provides no evidence

supporting his actual innocence claim, only bare assertions.

       He did present to the state courts an affidavit from the jailhouse informant dated

                                             -7-
September 8, 2002. Yet he did not provide it until 2006 and did not explain the four-year

delay. Such unjustifiable delay undermines the credibility of his actual innocence claim.

Perkins, 133 S. Ct. at 1928, 1935-36. This is especially true in light of the

“overwhelming” evidence of guilt presented at trial, which included a taped conversation

in which Kraus told a confidential informant he had to “blow away” someone the

previous night and the person was outside in the back of a pickup truck. Kraus, 2015 WL

2131632, at *3 (quotation marks omitted). High’s body was found in a wooden box

secured to the back of a pickup truck.

       Pro Se Status

       We easily dispose of this issue. “[I]t is well established that ignorance of the law,

even for an incarcerated pro se petitioner, generally does not excuse prompt filing.”

Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (quotation marks omitted).

       Because the result reached by the district judge is not reasonably debatable, we

DENY a COA and DISMISS this matter.

       The district judge allowed Kraus to proceed on appeal without prepayment of fees

(in forma pauperis or ifp). But only prepayment is excused, see 28 U.S.C. § 1915(a).

Kraus is required to pay all filing ($5.00) and docketing fees ($500.00). Payment must be

made to the Clerk of the District Court.



                                           Entered by the Court:


                                           Terrence L. O’Brien
                                           United States Circuit Judge

                                            -8-
