Cardenas (ID 96000) v. Williams

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

BENITO CARDENAS, JR.,

Petitioner,

v. CASE NO. 22-3194-JWL-JPO

TOMMY WILLIAMS,

Respondent.

MEMORANDUM AND ORDER

Petitioner Benito Cardenas, Jr., a state prisoner, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 6, 2022. (Doc. 1.) On September 12, 2022, the Court issued a notice and order to show cause (NOSC) directing Petitioner to show cause on or before October 12, 2022, why this matter should not be dismissed due to Petitioner’s failure to file his petition within the applicable statute of limitations. (Doc. 3.) The NOSC advised that “[i]f Petitioner fails to timely submit a response to this order, this matter will be dismissed without further prior notice to Petitioner.” Id. at 6. The deadline to respond to the NOSC has passed and Petitioner has not done filed a response. Thus, the Court will dismiss this matter as time-barred for the reasons set forth in the NOSC. See id. at 3-6. Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability (COA) upon entering a final adverse order.

“When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, 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). The failure to satisfy either prong requires the denial of a COA. Id. at 485. The Court concludes that its procedural ruling in this matter is not subject to debate among jurists of reason. Therefore, the Court declines to issue a certificate of appealability.

IT IS THEREFORE ORDERED that the Petition is dismissed as untimely filed. No certificate of appealability will issue.

IT IS SO ORDERED. DATED: This 19th day of October, 2022, at Kansas City, Kansas.

S/ John W. Lungstrum JOHN W. LUNGSTRUM United States District Judge