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Oliver v. Cline

United States District Court, D. Kansas

April 25, 2014

CORNELIUS DEVON OLIVER, Petitioner,
v.
SAM CLINE, Warden, et al., Respondents.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

This matter is a petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. Respondents have filed a motion to dismiss. For the reasons that follow, the court grants the motion and dismisses the petition as time-barred.

Background

Petitioner was convicted of two counts of first-degree, premeditated murder in violation of K.S.A. 21-3401(a) and two counts of first-degree felony murder in violation of K.S.A. 21-3401(b). He was sentenced to two consecutive terms of life without the possibility of parole for 50 years, and two consecutive terms of life without the possibility of parole for 20 years.

The Kansas Supreme Court affirmed the convictions on December 16, 2005. State v. Oliver, 124 P.3d 493 (Kan. 2005). The United States Supreme Court denied certiorari on June 5, 2006. Oliver v. Kansas, 547 U.S. 1183 (2006). The one-year limitation period for seeking a federal writ of habeas corpus began to run.

On June 1, 2007, petitioner presented a state post-conviction action to the District Court of Sedgwick County, Kansas. However, the motion was returned unfiled due to petitioner's failure to provide certain documentation to support his application to proceed in forma pauperis. On July 5, 2007, petitioner refiled the motion with the proper documents.

The state district court denied relief on October 5, 2007, ruling that the matter was not timely. The Kansas Court of Appeals (KCOA) remanded the matter on July 14, 2008, for a determination whether petitioner had received ineffective assistance of counsel.

On September 11, 2008, the district court found petitioner had been denied his state statutory right to effective assistance of counsel because counsel had failed to explain the late filing of the motion. The court concluded, "These facts, had they been presented to the Court at the October 5 hearing on the motion, could have altered the Court's conclusion that no manifest injustice existed to justify extending the time limitation on Mr. Oliver's motion." (Attachment 4, p. 3.) The court concluded the motion was timely filed, but on April 8, 2011, the court denied relief on the merits of petitioner's claims.

The KCOA affirmed the denial on May 24, 2013. Oliver v. State, No. 87, 191, 2013 WL 2395273 (Kan.App. May 24, 2013)(unpublished order). The Kansas Supreme Court denied review on October 29, 2013.

Petitioner commenced this matter on November 6, 2013.

Discussion

This matter is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). The AEDPA established, in part, a one-year limitation period for filing a federal habeas corpus petition. See 28 U.S.C. § 2244(d)(1), Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999).

The one-year limitation period runs from the latest of:

(A) The date on which the judgment became final by the conclusion of direct review or the expiration of the ...

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