Jenkins (ID 2000077939) v. Schnurr

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT TRAVIS JENKINS,
Petitioner,
v. 	CASE NO. 25-3076-JWL
DAN SCHNURR,
Respondent.
MEMORANDUM AND ORDER
This matter is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
by Petitioner and Kansas state prisoner Robert Travis Jenkins. After conducting the required
preliminary review of the petition, the Court ordered Petitioner to show cause why this matter
should not be dismissed due to his failure to commence it within the statute of limitations. (Doc.
3.) The notice and order to show cause (NOSC) set out the standards for analyzing timeliness and
then explained, in relevant part:
In this matter, the Supreme Court denied Petitioner’s petition for writ of
certiorari on October 7, 2019. Thus, on October 8, 2019, the one-year AEDPA
limitation period began to run. Under the “anniversary method” used in the Tenth
Circuit, the final day for Petitioner to timely file his § 2254 petition in this Court
was October 8, 2020. See United States v. Hurst, 322 F.3d 1256, 1261-62 (10th Cir.
2003). Petitioner did not file his § 2254 petition until April 2025. (Doc. 1.) Thus, it
was not timely filed.
(Doc. 3, p. 3-4.)
After explaining the circumstances under which statutory tolling and equitable tolling
might apply, the Court explained that “[a]n exception to the AEDPA statute of limitations exists
where a petitioner adequately asserts actual innocence.” Id. at 6. The NOSC set out the
requirements for use of the actual innocence gateway, as it is called, then granted Petitioner time
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in which to show cause why this matter should not be dismissed as time-barred. Id. at 6-7.
Petitioner filed multiple responses to the order (Docs. 15, 16, 17, 18, 19, and 21), after
which the Court ordered Respondent to file a limited pre-answer response (PAR) addressing the
timeliness of this matter. (Doc. 22.) Before the PAR was filed, Petitioner filed an additional
response and exhibit in support of allowing this matter to proceed. (Docs. 23 and 25.) Respondent
filed the PAR on October 21, 2025. (Doc. 28.) Therein, he argues therein that this matter must be
dismissed as untimely filed. Id.
The Court has reviewed the PAR and Petitioner’s various responses to the NOSC.
Petitioner’s responses, which Petitioner submitted as part of eight filings made over nearly a
month, total over 160 pages. (Docs. 15-19, 21, 23, and 25.) The timeliness arguments made in
these filings are often interwoven with claims of trial error, ineffective assistance of counsel, and
prosecutorial and judicial misconduct, leaving the precise nature of Petitioner’s assertions on
timeliness difficult to determine. Moreover, “the court cannot take on the responsibility of serving
as the litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Petitioner will be granted time in which to submit a single reply to the PAR before the
Court rules on whether this matter will be dismissed as time-barred. To be clear, the Court will
allow Petitioner to file only one reply to the PAR. The response to the PAR should be titled “Reply
to the Pre-Answer Response” and should address only whether this matter was timely filed or an
exception to the statute of limitations should apply. Once Petitioner has filed a reply to the PAR,
the Court will review all of the documents before it and will rule on whether this matter will be
dismissed as untimely filed, even if the deadline for filing the reply has not yet expired. Petitioner
should not file any additional motions at this time; he should file only the single reply to the PAR
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and any exhibits he wishes to attach to that reply. Any additional documents addressing timeliness
that Petitioner files without first obtaining permission from this Court may be stricken from the
record without prior notice to Petitioner.
The Court wishes to emphasize certain points for Petitioner to consider in preparing any
reply he chooses to file. First, to the extent that Petitioner wishes to argue that he is entitled to
equitable tolling of the one-year federal habeas statute of limitations, he is reminded that equitable
tolling is available “in rare and exceptional circumstances,” Gibson v. Klinger, 232 F.3d 799, 808
(10th 	Cir. 2000) 	(citation 	omitted), 	“when 	an 	inmate 	diligently pursues 	his 	claims 	and
demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his
control,” Marsh v. Soares, 223 F.3d 127, 1220 (10th Cir. 2000). General assertions of diligence
are not sufficient and Petitioner must explain how the extraordinary circumstances beyond his
control caused him to fail to timely file a federal habeas petition.
Second, to the extent that Petitioner wishes to argue that he is entitled to the actual
innocence exception to the statute of limitations, he is advised that he must present the Court with
“new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S.
298, 324 (1995). “An actual innocence claim must be based on more than the petitioner’s
speculations and conjectures.” Taylor v. Powell, 7 F.4th 920, 927 (10th Cir. 2021).
For example, Petitioner asserts that that ATM transaction records, if obtained, would show
either (1) that the victim did not withdraw cash as he stated he did or (2) that the serial numbers of
bills withdrawn by the victim do not match the serial numbers on the money seized by police when
Petitioner was arrested. These assertions by Petitioner are mere speculation as to what the
transaction records would show. Thus, they are not the type of reliable evidence that supports
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allowing Petitioner through the actual innocence gateway.
Similarly, Petitioner’s assertion regarding the testimony that Robert Long could provide is
not supported by anything other than his own speculation—Petitioner has not submitted a sworn
affidavit from Mr. Long detailing the testimony, for example. In order to be allowed through the
actual innocence gateway, Petitioner must not only identify evidence that was not admitted at trial,
he must persuade this Court that the evidence is reliable. See Schlup v. Delo, 513 U.S. 298, 330
(1995). If he does not do so, he may not pass through the actual innocence gateway. See, e.g.,
Blacklock v. Schnurr, No. 23-3253-JWL (D. Kan. Jan. 31, 2024) (unpublished memorandum and
order) (finding unsworn affidavit unreliable); Scott v. Bridges, 2023 WL 5016642, *11 (E.D. Okla.
Aug. 7, 2023) (unpublished opinion and order) (finding unreliable an unsworn letter from the
petitioner’s son and documents referred to but not presented); Gutierrez v. Patton, 2014 WL
6603423, 	*3-4 	(W.D. 	Okla. 	Nov. 	19, 	2014) 	(unpublished 	order 	adopting 	report 	and
recommendation) (finding unreliable and not credible a statement that purportedly exonerated the
petitioner but was not made upon penalty or perjury or oath or affirmation).
IT IS THEREFORE 	ORDERED THAT 	Petitioner is granted to and including
November 24, 2025, in which to file one written reply to the Pre-Answer Response in accordance
with the directions in this order. Upon receipt of Petitioner’s reply or expiration of this deadline,
whichever comes first, the Court will determine whether this matter should be dismissed as
untimely filed and will issue further orders as necessary.
IT IS SO ORDERED.
DATED: 	This 24th day of October, 2025, at Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge
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