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Labrum v. Cline
United States District Court, D. Kansas
January 5, 2018
RICK D. LABRUM, Petitioner,
SAM CLINE, Respondent.
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. 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. For the reasons set forth below, the
Court directs petitioner to show cause why this matter should
not be dismissed as time-barred.
purposes of the initial review of the petition, the Court
accepts the procedural and factual background set out by the
Kansas Court of Appeals:
In 2002, a jury convicted Labrum of five counts of rape, one
count of aggravated criminal sodomy, four counts of
aggravated indecent liberties with a child, and three counts
of sexual exploitation of a child based on evidence that he
had sexually abused his daughter over a 3-year period. The
district court sentenced Labrum to a total of 257 months in
prison. He appealed on several grounds, including that his
constitutional right to a speedy trial had been violated.
This court rejected his arguments and affirmed his
convictions on direct appeal. See State v. Labrum,
No., 89, 621, 2004 WL 1443895 (Kan.App.)(unpublished
opinion), rev. denied, 278 Kan. 850
In November 2004, Labrum filed a pro se petition for writ of
habeas corpus under K.S.A. 60-1507, arguing that his speedy
trial right had been violated, the statutory time limit to
prosecute him had run, his confession was coerced, and his
trial attorneys had been ineffective. After appointing an
attorney for Labrum, the district court noted that the Kansas
Court of Appeals had already decided many of the allegations
in his direct appeal but held a hearing and denied the
ineffective assistance of counsel claim. On appeal, Labrum
raised only the ineffective assistance of counsel claim and
abandoned the remaining issues. A panel of this court held
that Labrum had failed to prove his counsel's performance
was deficient or had prejudiced him. Labrum v.
State, No. 960710, 2008 WL 440513, at *1-3
(Kan.App.)(unpublished opinion), rev. denied 286
Kan. 1178 (2008)(Labrum II).
In May 2012, Labrum, with the assistance of an attorney,
filed a second petition for writ of habeas corpus under
K.S.A. 60-1507, contending that his speedy trial right had
been violated. This court affirmed the district court's
summary dismissal since the issue was raised and addressed in
the direct appeal and the motion had been filed outside the
statutory time limit. Labrum v. State, No. 109918,
2014 WL 177942, at *8 (Kan.App. 2014)(Labrum III).
State v. Labrum, 379 P.3d 1155(Table), 2016 WL
5344099 (Kan.App. 2016) rev. denied, Aug. 29, 2017.
matter is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Under the AEDPA, a one-year
limitation period applies to habeas corpus petitions brought
under 28 U.S.C. §2254:
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
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
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