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McNelly v. Cline

United States District Court, D. Kansas

August 22, 2017

KENNETH DAVID McNELLY, Petitioner,
v.
SAM CLINE, Respondent.

          NOTICE AND ORDER TO SHOW CAUSE

          SAM A. CROW, U.S. SENIOR DISTRICT JUDGE

         This matter is a petition for habeas corpus filed under 28 U.S.C. §2254. Petitioner proceeds pro se and paid the filing fee. The Court has conducted a preliminary review of the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Having considered the record, the Court directs petitioner to show cause why this matter should not be dismissed due to his failure to commence this action within the statutory limitation period.

         Background

         Petitioner was convicted in the District Court of Saline County on August 5, 1999, on eight counts of rape and one count each of aggravated criminal sodomy and aggravated indecent liberties with a child. State v. McNelly, 227 P.3d 1010, *1 (Table)(Kan.Ct.App. Mar. 26, 2010), rev. denied Aug. 8, 2010 (summarizing procedural and factual history).

         The conviction was affirmed by the Kansas Court of Appeals on January 11, 2002, and the Kansas Supreme Court denied review on April 30, 2002.

         On May 27, 2003, petitioner filed a post-conviction motion under K.S.A. 60-1507. That matter was summarily dismissed, and it does not appear that petitioner filed an appeal. He filed a second application under section 60-1507 in 2004. Relief again was denied, and petitioner filed an appeal in the Kansas Court of Appeals. That appeal was voluntarily dismissed on April 19, 2005. McNelly v. State, 302 O.3d 44, *1 (Table)(Kan.Ct.App. June 7, 2013), rev. denied, Nov. 22, 2013 (summarizing case history).

         In early 2006, petitioner filed a motion to correct an illegal sentence, and in July 2007, the Kansas Court of Appeals vacated petitioner's sentence and remanded the matter for resentencing. Petitioner was resentenced on April 7, 2008. Id.

         In 2010, petitioner filed a third motion under K.S.A. 60-1507, which was summarily dismissed. The Kansas Court of Appeals affirmed the dismissal on June 7, 2013, and the Kansas Supreme Court denied review on November 22, 2013.

         In 2015, petitioner filed another motion to correct sentence. The Kansas Court of Appeals summarily affirmed the denial of relief, and the Kansas Supreme Court denied review on June 20, 2017.

         Discussion

         Petitions for a writ of habeas corpus filed under § 2254 are governed by a one-year limitation period. 28 U.S.C. § 2244(d)(1) provides:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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 ...

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