Petition for Writ of Certiorari — In Re Ronald Pack, Petitioner

V

t

IN THE

SUPREME COURT OF THE UNITED STATES

r

Supreme Court, U S

FILED

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APR 0 7 2023

OFFICE OF THF pi cc

I

RONALD K. PACK,

PETITIONER

V.

JAMES HEIMGARTNER, ET AL,

RESPONDENTS

ON PETITION FOR WRIT OF HABEAS CORPUS

TO THE TENTH CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF HABEAS CORPUS

Ronald K. Pack 106023

Hutchinson Correctional Facility

P.O. Box 1568

Hutchinson, KS 67504-1568

'i

IN THE SUPREME COURT OF THE UNITED STATES

In re: Ronald Pack,

Petitioner

Case No.

PETITION FOR WRIT OF HABEAS CORPUS

Constitution and Statutory provisions involved

Article 1, Section 9 of the United States Constitution pro­

vides that, "The privilege of Habeas Corpus shall not be sus­

pended, unless when in cases of Rebellion or Invasion the public

safety may require it."

28 U.S.C. 2244(d)(2), The time during which a properly filed

application for state postconviction or other collateral review

with respect to the pertinent judgment or claim is pending shall

not be counted toward any period of limitation under this sub­

section.

28 U.S.C. 2244(d)(1)(B), The date on which the impediment to

filing an application created by State action in violation of the

Constitution or laws of the United States is removed, if the ap­

plicant was prevented from filing by such State action.

Questions presented

1) Does a Federal Court's'denial of a State prisoner's right

to statutory tolling under 2244(d)(2) or 2244(d)(1)(B) effective^

ly suspend the great writ in violation of Article I, section 9 of

the United States Constitution?

2) Did the District Court abuse its discretion by not con­

sidering the tolling effect if any of pending applications in

State Court?

3) Is the petitioner's "Motion to Reconsider" filed within

the AEDPA's (1) year grace period, a properly filed motion that

tolls a State prisoner's limitation period under 2244(d)(2)?

4) Did the State Court's failure to enter an appealable

order on petitioner's habeas petition constitute an impediment,

under 2244(d)(1)(B)?

1

5) Does the State Court's denial of counsel to appeal habeas

petition, in violation of State law (K.S.A. 22-4506(c) and Kansas

Supreme Court Rule.31 83 (m) , constitute a State created impediment

under 2244(d)(1)(B)?

6) Was petitioner's "Notice of Appeal" a properly filed ap­

plication to toll limitation period under 2244(d)(2)?

7) Does a district court dismissing a State prisoner's

original 2254 as untimely - prevent him from challenging timelier

ness in a subsequent petition?

8) Did petitioner abandon the claims that the district court

hold were meritless, focusing instead on claims that the court

held were procedurally defaulted?

9) Did the district court err in assessing procedural de£:iul

fault, and did the petitioner excuse a procedural default?

List of Parties

Respondent's Attorney General is the proper respondent due to

petitioner is under State Court jurisdiction, which has been un­

constitutionally obtained.

Opinions Below

Pack v. Heimgartner, 857 Fed. Appx 992 (2021), Nol 21-3053 8/31/21

Pack v. Heimgartner, 2021 U.S. Dist. Lexis 19353, Case No. 193246-DDC, 2254 Denied on 2/2/21.

State v. Pack, 345 P.3d 295, 2015 Kan. App. Unpub. LEXIS 224, ?ni

2015 WL 1513974 (Kan. Ct. App., Mar. 27, 2015)

Pack v. Heimgartner 2021 U.S. Dist Lexis 19353 No. 19-3246-DDC

Pack v. Heimgartner, 857 Fed. Appx 992 (2021) No. 21-3053

Jurisdiction

This Court has original jurisdiction under Article III of the

Constitution, and 28 U.S.C. 1254(1) and United States Constitution

Amendment II. Accordingly if the petitioner whishes to have the

petition considred on the merits, he must pay the docketing fee

required by this Court's Rule 38(a) and submit a petition in com­

pliance with Rule 33. '-Also, under 28 U.S.C. 1651(a).

2

Statement pursuant to Rule 20.4(A) and 28 U.S.C. 2242

Original Writ of Habeas Corpus 20.4(A) delineates the stan­

dard under which "the Court will grant an original Writ of Habeas Corpus.

(First), petitioner must show...that adequate relief

cannot be obtained in any other form or from any other Court;

(Second), the petitioner must show that exceptional circumstances

warrant the exercise of the Court's discretionary powers,

(quoting 28 U.S.C. 2242)."

The petitioner here has no avenue to file in the District

x

Court or the Tenth Circuit Court of Appeals, because offthe strict

requirements of 2244(b) the claim is not within the dispensation

that 2244(b)(2) grants for filing second or successive petitions.

Pack cannot satisfy the gatekeeping requirements of 2244(b)(2), therefore cannot obtain the authorization from the Tenth

Circuit to file a second 2254 application as put forth in 2244(b)

(3) (A) . The Tenth Circuit has also foreclosed relief for Pack

from 60(b) challenges to the limitation period, as an avenue for

reopening his habeas petition, Pack contends that in this case

he can show "exceptional circumstances." (First), that he has ao

Motion to Reconsider his certificate of appealability that was

filed in Nov/Dec of 2021 still pending in the 10th Circuit that h

he has never received an answer from? pursuant to 2244(d)(2), and

that he has further tolling rights separate and distinct pursuant

to 2244(d)(1)(B)'s tolling provisions. And (Second), that he can

prove timeliness on existing record, which he has never been allowed to do. The facts of this case shows that Pack satisfied

the first prong, to trigger tolling - his applications were filed

within the (1) year grace period allowed by AEDPA, but the Court

did no further analysis.

To determine whether an application for post conviction re­

lief was pending in State Court, the United States Supreme Court

has ruled that Federal Courts must determine whether the petition

was "properly filed" and timely under State law. Evans v. Chavis,

546 U.S. 189, 198 (2006); also Kholi v. Wall, 582 F.3d 147 (1st C

Cir. 2009), cert, granted, 130 S.Ct. 3274 (2010)(granting cer­

tiorari to determind whether a State Court motion constitutes an

3

application for State post-conviction or other collateral review

for purpose of 2244 (d)(2).

This Court should recognize that no conceivable benefit can

be derived from rights of which one is unaware.

The rights to

the tolling provisions of 2244(d)(2) and 2244(d)(1)(B) is a mere

illusion, because, most times a prisoner will not know whether hi

his State filings complied petition erroneous - abused discretion

in deeming issue waived and not reaching merits of tolling argu­

ment); Rodrigues v. Bennet, 303 F.3d 435 (2nd Cir. 2002)(Where

district court did not determine whether petitioner was entitled

to statutory or equitable tolling). For the tolling provision to

apply 2244(d)(2), requires only that the state application be

properly filed. See Artuz v. Bennet, 531 U.S. 4 (2001). Without

further determination as to disposition of state applications

(which would require the resolution of unsettled legal question),

further defelopment is necessary. Pack is left presently with the

lasting impression that his petition quite possibly-if not likely,

was not, in fact untimely filed. The court has recognized a Due

Process Claim under these circumstane. See Logan v. Zimmerman,

455 U.S. 422 (1 992) .

Inherent in 2244(d)(2) is the obligation of the federal court

having jurisdiction to determine if any pending applications in

State court tolls limitation period under federal law. See Evansv. Chavis, 546 U.S. 189 (2006)(To determine whether an application

for post conviction relief was pending in state court the U.S. Su­

preme Court has ruled that Federal Courts [must] determine whe­

ther the petition was properly filed. Id 189. The only question

that remains is whether the motions are properly filed according

to Federal Law. If the court concludes that the applications are

properly filed according to Federal Law, Pack is statutorily en­

titled to tolling under 2244(d)(2) See Weibly v. Kaiser, 50 Fed.Appx. 399 (10th Cir. 2002) headnote #10.

Equitable Tolling

The court may also find it relevant to the AEDPA's analysis

that Pack is bringing an "actual innocence" claim. See e.g.,

Triestman v. United States, 124 F.3d 361, 377-380 (CA2 1997),

(discussing serious constitutional concerns that would arise if

4

AEDPA were interpreted to bar judicial review of certain innocence claims). Pet. for writ of habeas corpus 20-22 (arguing

that congress intended actual innocence claims to have special o

status under AEDPA).

Even though a petitioner is not entitled to the automatic

tolling mandated by 2244(d)(2) under appropriate circumstances

a petitioner may be entitled to equitable tolling,

Pack had

presented both procedural and substantive actual innocence

claims. The constitutional claims are based not on his innocence,

but rather on his contention that the effectivenss of his counsel

denied him the full panoply of protections afforded to criminal

defendants by the constitution. Pack may obtain review of his

constitutional claims only if he falls within the narrow class of

cases, implicating a fundamental miscarriage of justice, His

claim of innocence of the charged crime is offered only to bring

him within this narrow class of cases. See Schlup v. Delo, 513

U.S. 298, 314-15 (1995).

The habeas court must make its determination concerning the

petitioner's innocence in light of all the evidence, and evidence

tenably claimed to have been wrongly excluded or to have become

available only after trial,

(See Schlup 513 U.S. at 327-28. Pack

presented "new reliable evidence" in the form of two separate con.

court ordered psychiatric evluations, that was never before the

jury trial. Pack was precluded from adducing psychiatic evalua­

tion evidence ofahis .inability to form the specific intent neccessary to commit 2 counts of rape. cf. Hughes v. Mathews, 576

F.2d 1250 (7th Cir. 1998)(The court also held that the exclusion

of psychiatric evidence violated the petitioner's U.S. Constitu­

tional Amendment VI, and XIV rights, as it was relevant and com­

petent, and its exclusion was unjustifiable.

In Packlsvcasejlhe was actually innocent of the 2 counts of

rape.

1) First of all, Pack had evidence of medical records prov­

ing that he could not get an erection due to physical inability,

so the arousal prong could not.'be met. 2) Second, Pack was not

given a psychiatric/psychological evaluation before jury trial,

and 3) There was no physical evidence to prove the victim was

5

ever raped or that any physical damage was ever done to the hy­

men, such as penetration of any object or scaring, The only

evidence was the testimony of a minor who was coached, groomed,

and rehearsed over and over by her mother, and the prosecutor.

411Trial counsel also failed to suppress the .^alleged wit­

ness's testimony who was a minor coached by the State prosecu­

tor and the victim's Mom to lie against the defendant in order

to gain an illegal conviction, 5) Trial counsel also failed to

provide the trial court evidence that the alleged victim's

Mother lied against the defendant and fabricated false evidence

to the police and coached her daughter to lie against the de­

fendant in order to keep her kids from going over to the de­

fendant's family house.

All of this evidence was available to Pack's counsel, but

Pack's counsel was ineffective and refused to use it.

As in the

case of Murray v. Carrier, 477 U.S. 478 (1986), if the procedural

default is the result of ineffective assistance of counsel, the

6th Amendment itself, U.S. Const. Amendment VI, requires that

responsibility for the default by imputed to the State which may

not conduct trials at which persons who face incarceration must

defend themselves without adequate legal assistance, Ineffective

assistance is cause for a procedural default. Which requires

that a claim of ineffective assistance be presented to the State

Courts as an independent claim before it may be used to establish

cause for a procedural default.

As in the case of Dretke v. Haley, 541 U.S. 386 (2004), Pack

had viable and significant claims of ineffective assistance of

Counsel which potentially provided the petitioner with appropriate

relief. With respect to a State prisoner's attempts to excuse a

prior State Court procedural default of a Federal Constitutional

claim, when a Federal Court, in a habeas corpus case under 28USCS & 2254, is faced with allegations by the prisoner of "actu­

al innocence," whether of the sentence or of the crime charged,

the Federal Ct must first address all nondefaulted claims for

comparable relief and other grounds for cause to excuse the pro­

cedural default: 1) This actual innocence avoidance principle was

6

implicit in a prior U.S. Supreme Court decision which discussed t

the actual innocence exception. 2) Even though the availability

of other remedies alone would be sufficient Justification for this

actual innocence avoidance principles the may threshold legal Mv. 3

questions after accompanying actual innocence claims provide addi­

tional reason for restraint, for (a) some (although not all) ac­

tual innocence allegations will present difficult Federal Consti­

tutional questions that should be avoided if possible; and b) ac­

tual innocence allegations are likely to present equally difficult

questions regarding the scope of the actual innocence exception.

The petitioner provided the U.S. District Court with the gen­

eral cause and prejudice requirement for excusing State-Court

procedural defaults during his Court order to show cause, but the

Court refused to grant and acknowledge it, even when Sack provided

a cause & prejudice analysis and provided cause to excuse the

procedural default, but was blocked by procedural default due to

his ineffective assistance of counsel so the courts refused to "hu

hear it. So the big question is whether this exception applies

where an applicant asserts "Actual Innocence" of a non-capital

sentence, because the district court failed first to consider al­

ternative grounds for relief urged by petitioner, grounds that

might obviate any need to reach the actual innocence question.

Cause requires a showing of some external impediment preventin^icounsel from constructing or raising the claim in an extraor­

dinary case where a Const, violation has probably resulted in the

conviction of one who is actually innocent, a Federal Court may

grant a writ of Habeas Courpus even in the absence of a showing o

of cause for the procedural default.

If a procedural default by the defense in a criminal case

is the result of ineffective assistance of counsel, the 6th Amend­

ment requires that the responsibility for the default be imputed

to the State, which may not conduct trials at which persons who

face incarceration must defend themselves without adequate legal

assistance. Thus, Ineffective assistance of counsel is cause for

a procedural default, for purposes of the Rule that a prisoner

who fails to properly raise a federal Constitutional claim in

7

the ground raised—competency to be excuted had been raised in

the original petition. Rather than read the second and successive ban literally, at the expense of a first Habeas Corpus ruli

ing on the issue (implicating constitutional concerns). The

Court instead seized upon the fact that the District Court never

ruled on the merits of the original claim, Id at 645. This allowed the Court to find that the claim was not successive and

permitted the claim to be heard, despite the apparent statutory

prohibition. Id.

The tenth circuit stated that Pack did not argue that the dis­

trict erred in assessing procedural default. Instead, the court

said he erred in concluding the default could not be excused,

and that it is his burden to establish grounds to excuse a procedural default. This is incorrect, because Pack filed a Cause

brief under Coleman v. Thompson, 501 U.S. 722, 750, 11 S. Ct.

2546, 115 L.Ed. 2d 640 (1991, & Thomas v. Gibson, stating the

Cause of his ineffective assistance of counsel and how actual

prejudice occurred, but the District Court did not wanttto hear

it. Pack did make an actual showing that reasonable jurists could

debate the issues.

Faced with a constitutional collision be%: 3 l.'l

tween AEDPS and a prisoner's right of Habeas review, the Courts

chose to avoid it by interpreting 60(b) limits to fit within

what the Constitution permits, allowing reopening of Habeas for

procedural dismissals, without the need to demonstrate an issue

of Constitutional dimension. This result ;follows from the

Court s doctrine of constitutional avoidance. Harris v. UnitedStates, 536 U.S. 545, 555 (2002). Lower Federal Courts have also

followed the precedent of this Court's analytical formulations.

The Court recognizing that the alternative left petition­

ers without Habeas review or an appeal of that decision, the

Court treated procedurally dismissed cases to a special rule,

designed to ensure appellate review even where no constitutional

appellate issue is present. It noted that procedurally dis­

missed cases have never had a merits determination of the

petitioner's claims in which miscarriage of justice could be

demonstrated. Slack, 529 U.S. at 488. "The fact that this court

would be required to answer the difficult question of what the

8

Suspension Clause protects is in and of itself a reason to avoid

answering the constitutional questions that would be raised by

concluding review was barred entirely." INS, v. St. Cyr, 533 U.S.289, 301, n.13(2009).

Original Writ of Habeas Corpus and Supreme Court Rule 20.4

(A), delineates the standard under which "the Court will grant an

original writ; (first), petitioners must show...that adequate re­

lief cannot be obtained in any other form or from any other Court;

(Second), the petitioner must show that exceptional circumstances

warrant the exercise of the Courts discretionary power. (Quoting

2242 ) . This case satisfies both of those requirements. Here, the

lower courts have foreclosed any adequate relief by, denying ’a::

Pack's (60(b) motion to reopen Habeas petition on limitation gro”

grounds and by refusing to allow a second or successive applicant

tion, with a strict reading of AEDPA's 2244(b)(1)'s gatekeeping

provision. The "second or successive application, with a stict

reading of AEDPA's 2244(b)(1)'s gatekeeping provision, The "second and successive" bar of AEDPA, itself has been applied in a

manner that renders the habeas remedy ineffective or inadequate.

The above was the only procedural device to prevent injustice and remedy the due process violation, Due process inheres

in statutory rights. Denial of due process of law (in a separate context) is a violation of the Fifth Amendment, A Habeas

petitioner, such as Pack has a statutory right to a single Fed­

eral Habeas Corpus review of his State imprisonment and denial

of that right may violate the Fifth Amendment assurance of due

(See) Anti Fascist Committee v. McGrath, 341 U.S. 123,

process.

165 (1951).

Due process and the prohibition on suspending Hab­

eas strongly suggest that the complete preclusion of Federal re­

view predicated on a procedural trap are of arguble unconstitu­

tionality and therefore, represent unsound interpretation of

2244(b)(1). Decisions of lower Courts crashes headon into difficult issues of Constitutional law.

Is Pack's "Motion to Reconsider" filed in the Tenth Circuit, in

October/November of 2021-within the AEDPA's one year grace period

a properly filed motion that tolls a State Prisoner's limitation

time under 2244(d)(2)?

9

The District Court erred without further analysis of Kansas

law if petitioner's motion was properly filed to trigger 2244(d)

(2)'s tolling provision. Cf. Noble v. Adams, 676 F.3d 1180 (9th

Cir. 2012)(District Court error in concluding, without further

analysis of State law if motion was properly filed). Whether an

application for State post conviction relief is "pending" for 2244(d)(2) purposes in an issue of Federal law. Mills v. Norris,

187 F.3d 881 (8th Cir. 1994) cited by Williams v. Gibson, 229 F.3d 13 10 (10th Cir. 2000). For tolling purpose under 2244(d)(2)

a Court determines only whether the petitioner properly filed for

such State post-conviction relief. Truelove v. Smith, 9 Fed. Appx. 798 (10th Cir. 2001). If application properly filed under 3

State law petitioner is statutorily entitled to tolling of limitation period. See Weibly v. Kaiser, 50 Fed. Appx. 399 (10th

Cir. 20002) Head note #10.

To determine whether an application for post conviction re­

lief was pending in State Court, the United States Supreme Court

has ruled that Federal Courts [must] determine whether the peti­

tion was properly filed and timelyriinder State law.

Chavis, 546 U.S. 189, 198; Carey, 536 U.S. at 226.

Evans v. -

Kansas Courts consider a Motion to Reconsider to be equal to

a Motion to Alter or Amend Judgment. Honeycutt v. City Wichita,

251 Kan. 451, 460, 836 P.2d 1128 (1992). If the language of the

motion is proper, it may allow for consideration as a motion under K.S.A. 60-259(f), even if that Statute is not specifically in­

voked . This Court in United States v. Healy, 376 U.S. 75, 78-79

(1964), expressly recognized that "the consistent practice in

civil and criminal cases alike has been to treat timely "motions

for reconsideration" as rendering the original judgment nonfinal

for purpose of appeal for as long as the motion is pending. U.S.v. Dieter, 429 U.S. (1976); Hundley v. Pfuetze, 18 Kan. App. 2d

755 (1993)(Therefore by filing a motion to reconsider, a party

tolls the running of the appeal period until that motion is de­

cided. ) ; State v. Aqrillo, 423 P.3d 1063 (2018)(Recently, out

Court entered an order noting that the pending motion to recon­

sider in the District Court left us without proper jurisdiction

to consider the appeal since there was not yet a final judgment.

10

See K.sHaU 60-2102(a)(4).

Case was remanded for a ruling on

Agrillo's motion to reconsider. When a trial Court has failed

to ruffle on an incarcerated litigant's pending motion/ reviewing

Courts have consistent Sly vacated the judgment and remanded the

case to the trial court with directions to consider and act on

pending motions." Bell v. Todd/ 2005 Tenn. App. 206 sUw.d. 86.

Bell reminds the careful practioner that the trial Court

must examine and address a pro se litigant's outstanding motions

before entering judgment in a case.

A state court's failure to

rule on a Motion for Reconsideration is a denial of habeas petioner's due process rights under the 14th Amendment. The due

process clause grants an aggrieved party the opportunitytfcoppeesent his case and have its merits fairly judged. Logan v. Zim—

ffieBman Brush Co • / 455 U.sU 422/ 433 (1982); Simmons v. Schriro,

187 Fed. Appx. 753 (2006)(The prisoner presented a viable United

States Constitution Amendment XIV due process claim arising out

of the State Courtis failure to rule on his Reconsideration Mofeio

tion from denial of his first post-conviction petition) Id. The

posture of Simmons case presents the court with a perfect ana­

logy of Pack's case.

For motions filed under 2254/ Congress explicity instructs

the Federal Courts through the AEDPA'S act of 1996/ 2244(d)(2)

to toll time spent in State Court. Hoggro v. Boone/ 150 F.3d

1223/ 1226 (10th Cir. 1998); Gibson v. Klinger/ 232 F. 3d 799,

806 (10th Cir. 2000)(determined that the pendency of a post con­

viction application must be interpreted under Federal law). The

court observes that the text of 2244(d)(2), which creates a toftliing right to the one year statute of limitations, contains no

language restricting the application. To the contrary for the

tolling provision to apply 2244(d)(2), requires only that the

State application for post conviction or other collateral review

be properly filed. See Artuz v. Bennett. The Court concludes

that the language off2244(d)(2) itself is not ambiguous as to the

condition that triggers the tolling provisions. As such, the

Court is not at liberty to generate an ambiguity as to the mean­

ing of the phrase "properly filed." A Statute may not be modi

11

modified by judicial construction where its meaning is plain.

Rawlins v. Nat. Trans. Sf. Bd • / 837 F.2d 1327 (5th Cir. 1998).

2244(d)(2) means what it says. See Iancu v. Brunetti/ 588 U.S'J139 SU Ct. 2294 (2019)(As usual when a lower court has invalidated

ted a Federal Statute, we grant certiorari). Bennett, 303 F. 3d

435 (2nd Cir. 2002)(Where District Court did not determine whether

petitioner was entitled to statutory tolling); cf. Ellis v. Har­

rison , 270 Fed. Appx.721 (9th Cir. 2008)(dismissal of 2254 peti­

tion erroneously abused discretion in deeming issue waived and

not reaching merits of tolling argument); *Kholi v. Wall, 582 F.3d 147

F.3d 147 (1st Cir. 2009) cert, granted, 130 S’.1 Ct. 3274 (2010)

(granting certiorari to determine whether a State Court motion

constitutes an application for post conviction or oiritear collater­

al review for purpose 2244(d)(2); Downs v. McNeil, 520 F.3d 1311

1322-25 (11th Cir. 2008)(Vacating the district court order dis­

missing the petition as untimely and remanding for evidentiary

hearing). *Emerson v. Johnson, 243 F.3d 931, 935 (5th Cir. 2001)

(limitation tolled when motion for reconsideration in State court

properly filed)(Emphasis Added).

A determination as to what effect the Motion to Reconsider

filed on October/November 2021 in the 10th Circuit from the denial

of petitioner's certificate of appealability is necessary to en­

force 2244(d)(2)'s and 2244(d)(1)(B)'s plain terms. Alternative­

ly, if the state court did not rule on the petition at all, then

Pack's motion for reconsideration of his certificate of appeala­

bility may have been prematurely rather than untimely filed.

See

Hough v. Carlton, 339 Fed Appx 520 (6th Cie.)2009).

State Created Impediment's

28 U.sllc. 2244(d)(1)(B). The date on which the impediment to

filing an application created by State action in violation of the

constitution of laws of the United States is removed, if the ap­

plicant was prevented from filing such action. While 2244(d)(1)4

(B) of the AEDPA says that an exception to the filing deadline

will be made when "impediment" to filing created by State action

exists, it is not at all clearewhat exactly suchaan impediment

might be, case law grappling with the doctrine is relatively

12

sparse . A review of case law shows 2244(d)(1)(B) typically ap­

plies when the State thwarts a prisoners access to the Courts.

See Sell v. U.sH, 539 U.sll 166, 176 (2003)(ln as much as the

10th Circuit has not yet brought the case to final judgment, ther

there is no appealable order); State v. Agrillo, 423 PI! 1063

(Kan. Ct. App. 2018)(Same),

Pack is alleging here that the 10th Circuit's failure to

rule on his Motion to Reconsider the denial of his certificate

of appealability prevented him from exhausting State remedies.

Which is a prerequisite to Federal Habeas review.

And

(second), that the denial of his statutory right to appellant

Habeas counsel under State law, constitutes separate and dis­

tinct impediments under 2244(d)(1)(B)'s tolling provision.

To obtain relief under 2244(d)(1)(B) the petitioner must

show a causal connection between the unlawful impediment and his

failure to fildl a timely Habeas petition. Bryant v. Schriro, 499

F.3d 1056, 1060 (9th Cir. 2007).

Section 2244(d)(1)(B) requires

that the State action constituting the impediment violated the

U.sH Constitution and prevented the inmate from filing his claim.

Irons v. Estep, 291 Fed. Appx. 136 (10th Cir. 2008). A State

created impediment must, to animate the limitation extending exception "prevent" a prisoner from filing for Federal Habeas re­

lief. That gets the grease from the goose. The verb "prevent,"

in common parlance means to frustrate hold back, or keep from

happening.

Heineman v. Murphy, 401 Fed. Appx. 304 (10th Cir. 2010).

Pack contends that the State's failure to appoint him counsel,

and for the 10th Circuit to rule a judgment on his certificate of

appealability, in violation of State law, constitutes a State

created impediment under 2244(d)(1)(B). The Court in Green v.Johnson, 515 F. 3d 290, 304-05 (4th Cir. 2008)(found "impediment"

when State failed to replace allegedly ineffective counsel and

grant a hearing on prisoner's case). Certainly the total denial

of Counsel constitutes an impediment that prevents ansihmate from

filing.

Furthermore, the State Court's failure to enter an appeala­

ble order constitutes an impediment in violation of the U.S.

13

Constitution. The States failure to rule on Pack's motion for

reconsideration was not only a Statutory violation (K. sIIaII ) 602103(a)/ but a Constitutional violation. See Logan v. ZimmermanBrush Co • / 455 U.sll 422, 433, 102 sll Ct. 1148 (1982)(ASState

Court's failure to rule on a Motion for Reconsidration is a de­

nial of Habeas petitioner's due process rights under the Four­

teenth Amendment): Simmons v. Schriro, 187 Fed. Appx. 753 (2006)

Headnote #3.

The above coupled together or separately constitutes an in­

surmountable State created impediment under AEDPA's 2244 (d)(1)(IB), that kept Pack from exhausting State remedies, and prevent­

ed him from filing timely Federal Habeas relief. Cf. Critchleyv. Thaler, 586 F.3d 318 (5th Cir. 2008)(Holding that the State

Court's failure to file a prisoner's State Habeas petition con­

stituted a State created impediment under AEDPA). AEDPA's limi­

tation period with it's accompanying tolling provisions-ensures t

the achievement of the goal of exhaustion of State remedies.

These impediments have yet to be removed.

Reason for Granting Writ

The {primary reason for granting the writ, is that Pack is

actually innocent of the charged crime. First, Pack presented a

claim of actual innocence as a gateway to overcome the procedural

bar of untimeliness, that otherwise prohibits reaching the merits

of his substantive claim. His claims are entitled to considerafei

tion of the merits of the motion if the claim meets the standard

outlined in Murray v. Carrier, 477, U.sll 478 (1986); Schlup v.Delo, 513 U.sll 298 (1995). When an inmateJs motion of reconsidera­

tion is untimely, a court must consider whether the inmate is en­

titled to an equitable tolling of the AEDPA limitation period.

Sigala v. Bravo, 656 F.3d 1125 (10th Cir. 2011).

This case is a

prime example where a State Court without justification, refused

to rule on a Constitutional claim that has been properly/timely

presented to it.

One of Pack's actual innocence claims is based on an underly­

ing Constitutional violation of ineffective assistance of counsel,

which is a violation offthe Sixth Amendment. Pack's claim of

14

innocence would not provide a basis for relief in and of itself.

Relief would be dependent=upon his later ability to demon­

strate the merits of his substantive claims under Strickland v.Washington/ 466 U.S. 668 (1984)(Setting standard for relief for

ineffective assistance of counsel); also See House v. Bell/ 547

U.sll 518, 543 (2006)(acknowledging that ineffective assistance

of counsel in an initial trial is considered a Constitutional

error).

In support of this ineffective assistance of counsel claim,

Pack presented "newly discovered" evidence in the form of one

outstanding Court ordered psychiatric and psychological evaluate

tion. (App. B, Exh-IJ). See Griffin v. Johnson, 350 F.3d 956

(9th Cir. 2003)(The Court found that the psychiatirc evidence

was "newly presented" rather than "newly discovered" evidence,

but could be raised as a basisxfor actual innocence); Powell v.Florida, 464 So. 2d. 1319 (1985), recognizing that a failure to

raise a defendant's competency can be grounds for ineffective

assistance of counsel; Saunders v. Florida, 704 So. 2d 224 (1988)

(reversing a defendant's conviction due to absence of record re­

futing claim that counsel was ineffective for failure to investigate defendant's competency); O'Callaghan v. State, 461 So. 2d

1354, counsel's motion for psychiatric examination was granted,

but never conducted); Wiggins v. Smith, 539 U.sll 510, 534 (2003)

(determining that an attorney's failure to investigate and pre­

sent mitigating evidence constituted ineffective assistance of

counsel); Williams v. Taylor, 529 U.sH 362, 390 (2000)(same).

AKE v. Oklahoma, is binding precedent and requires the State to

provide the defense with access to a competent psychiatrist who

will conduct an appropriate, 1) examination and assist in 2) evaluation, 3) preparation, and 4) presentation of defense.

(Quoting AKE, 470 U.sll 68, 83).

Pack's right to a fair trial were violated in this instance

by the total lack of a psychiatric examination or hearing to

determine competency to stand trial. Cfk Sanders v. State, 950 3

3d. 1132, 1136 (Miss. Sup. Ct. 2009)(The Court found error where

a trial Court failed to conduct a competency hearing, after o

15

ordering a defendant to undergo a psychiatric exam, while never

making an on-the-record finding that the defendant was competent)

Jay v. State, 25 So. 3d 257 (Miss 2009)(same). This violation

can only be corrected at this time by a new trial. Hansford v.U.sll, 365 F. 2d 920 (D.C. Cir. 1966).

Pack was precluded from

adducing psychiatric evidence of his inability to form the

specific intent neccessary to commit 2 counts of rape. cf Hughesv.-Mathews, 576 Fj.2d 1250 (7th Cir. 1998)(The Court also held

that the exclusion of psychiatric evidence violated petitoner's

U.sll Constitution Amendment VI, XIV rights, as it was relevant

and competeht, and its exclusion was unjustifiable), The due

process clause requires the State to provide a criminal defen­

dant with "a reasonable opportunity to demonstrate that he is

not competent to stand trial, (quoting) Medina, 505 U.S. at 451.

The ends of justice demand consideration of merits of claim

on successive petition where there is colorable showing of factualiinnoeenee;sso the Motion for Reconsideration of petitioner's

Certificate of Appealability should be remanded for consideration

of whether the ends of justice require consideration on the merits.

Procedural default is excused under actual innocence except!

tion where petitioner's claim, if true, rendered conviction void

and could not be legal cause of imprisonment. Gonzales v. Abbot,

967 F. 2d 1499, 1504 (11th Cir. 1992);! 967 F.2d 1499, 1504 (11th

Cir. 1992); Moore v. Kemp, 824 F. 2d 847 ((11th Cir. 1987), Jlllcert

granted 495 U.sll 1005.

If Courts apply AEDPA in such a way that

it bars consideration of an actual innocencB claim, then AEDPA

is "Unconstitutional." Justice Stevens, In Re Sharp, No. 15646

(Sup. Ct. Dec. 2015). The Supreme Court has conceded that

prisoners in the Fifth, Tenth, and Eleventh Circuits cannot obtain

otherwise adequate relief, because successive petitions are unavailable to prisoners in these circuits. Brief of Opposition at

12 In re Sharp. Pack incorporates as though fully set herein

his 28 U.sllc. 2254 petition and the Memorandum In Support of 2254,

located at (Appendix A & B). To show that he presented a cogizable, cBlorable actual innocence claim.

Furthermore, the 10th Circuit never gave a decision Bn Pack's

16

Certificate of Appealability without making factual findings

as to tBlling under 2244 (d1)- ( 2$ , and 2244 (d ) (1 *)' (B) , with respect

tB Ben<3ing StBte applications. The fentbicircliitcdismissed

Pack's ElBti on tB RecBnsider as untlilmely^ and denied his rule 60(b)

Motion for Relief fWom that judgment without benBfit of Artuz v.Bennett, 531 U.sl! 4. HoWever, Pack filed a Motion tB RecBnsider

his certificate of ajipealalllility petition within the 1) year

grBc-B period alloifed by AEDPA, that may haile tBlled the limitBfe

tion period of Artuz. (cf. the same) BlBckmon v. MonBy, 531 U.sU988 (2000)(mem), on remand, 27 Fed. Appx. 546 (6th Cir. 2001).

The Court may excercise its statutory poBer of ttrBnsfer and

‘transfer Bn Briginal writ tB a court in the BroBer jurisdiction

tB review factual issues.

(See) In re PaBis, 557 U.sll 952.

The Tenth Circuit Court Bf AppealB has alBo held that Bn

original writ to a cBurt in the BroBer jurisdiction tB review

factual issueB, and an aBBiicati on rBising a claim of excessive

delay does nBt cBunt for Buccessive aBplication purposes.

Reeves il. Little, 120 F.3d 1136, 1139 (10th Cir.)(per curiam).

Pack cBntends that his inBrdinate delay Biaim, asking the Feder­

al Tenth Circuit tB be excused fBBm exhausting StBte remedies,

was Brought about because the State Court refused tB enter Bn

appealaBle order on StBte HaBeas applications. Therefore, this

claim is proBer before this cBurt. (see) TurnBr v. BaqilkBy, 401

4@1 F. 3d 178 (6th Cir. 2005)(HaBeselief may be unconditionally

grBnted due tB inordinate delayj^ Harris v. Chapipd?on, 15 F. 3d

1538, 1558 (10th Cir. 1994)(Protection against unreasonaBle de­

lay in the appellate process is provided by the due Brocess

clause). Mathis B. Hood, 651 F.2d 612, 615 (2nd Cir. ) (Feder111

HaBeas review remains aMailaBle tB Br°tect indigents rights to

appeal).

The actual innBcenoe claim lloupled with the inordinate de­

lay claim (if true) is sufficient grounds for this HonBrMBle

Court to evoke its original jurisdiction and grant the writ of

Habeas Corpus releasing the petitioner from his Unconstitutional

avoidance.

CONCLUSION

17

1

► '

The jietitiiion for writ of Habeas Corpus should be grHnted.

Respectfully Submitted

cX/>

V

U/0lp0P-'5

Ronald Pack # 106023'

HCF

Pllo. Box 1568

Hutchimson, KS

67501

18

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