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Labrum v. Cline

United States District Court, D. Kansas

January 5, 2018

RICK D. LABRUM, 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. 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.

         Background

         For 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 See State v. Labrum, No., 89, 621, 2004 WL 1443895 (Kan.App.)(unpublished opinion), rev.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 (2004)(Labrum I).
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 Labrum v. State, No. 960710, 2008 WL 440513, at *1-3 (Kan.App.)(unpublished opinion), rev.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.

         Analysis

         This 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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