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White v. Roberts

United States District Court, D. Kansas

August 19, 2014

BOBBY BRUCE WHITE, Petitioner,
v.
RAY ROBERTS, 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 this matter on the ground that petitioner failed to commence this action within the one-year limitation period. Petitioner has filed a response.

Background

Petitioner is serving a term of life imprisonment following his August 2005 conviction, upon retrial, for first-degree murder in violation of K.S.A. 21-3401. On June 22, 2007, the Kansas Supreme Court affirmed the conviction on direct appeal. State v. White, 161 P.3d 208 (Kan. 2007).

On May 19, 2008, petitioner filed a state post-conviction action pursuant to K.S.A. 60-1507. The state district court denied relief on June 5, 2009, and on February 4, 2011, the Kansas Court of Appeals affirmed that decision. White v. State, 2001 WL 428656 (Kan.App. 2011)(unpublished opinion). On March 1, 2011, petitioner filed a motion for review in the Kansas Supreme Court. That court denied review on April 25, 2011.

Petitioner filed the present action on July 18, 2013.

Discussion

This matter is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). The AEDPA established a one-year limitation period for filing a petitioner pursuant to § 2254. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The 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 time for seeking such review;
(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 applicant was prevented from filing by such State action;
(C) The date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) The date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. §2244(d)(1)(A)-(D).

The limitation period is tolled during the pendency of a properly-filed "application for State post-conviction or other collateral review with respect to the pertinent judgment or claim." 28 U.S.C. § 2244(d)(2).

Here, the Kansas Supreme Court affirmed petitioner's conviction on June 22, 2007, and the limitation period began to run 90 days later, on September 20, 2007, upon the expiration of the time for seeking review in the United States Supreme Court. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001)(conviction becomes final after U.S. Supreme Court denies review, or, "if no petition for ...


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