United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE
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.
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).
conviction was affirmed by the Kansas Court of Appeals on
January 11, 2002, and the Kansas Supreme Court denied review
on April 30, 2002.
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).
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.
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.
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
for a writ of habeas corpus filed under § 2254 are
governed by a one-year limitation period. 28 U.S.C. §
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