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Hogan v. Cline

United States District Court, D. Kansas

March 6, 2018

BYRON L. HOGAN, Petitioner,
v.
WARDEN SAM CLINE [1], Defendants.

          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 his fee status is pending. The Court has reviewed the petition under Rule 4 of the Rules Governing § 2254 Cases in the U.S. District Courts and enters the following order.

         Background

         Petitioner was convicted in 2011 of rape, attempted aggravated criminal sodomy, and violation of a protective order. State v. Hogan, 302 P.3d 45 (Table), 2013 WL 2991134 (Kan.App. Jun. 14, 2013), rev. denied, Oct. 30, 2013.

         On September 14, 2014, he filed a timely motion for post-conviction relief under K.S.A. 60-1507. The state district court summarily denied relief, and petitioner appealed. Hogan v. State, 376 P.3d 98 (Table), 2016 WL 4070726 (Kan. App. Jul. 29, 2016), rev. denied, Jun. 2, 2017.

         Petitioner filed this application for relief under Section 2254 on February 28, 2018.[2]

         Discussion

         The Court first must determine whether this petition is timely. The Antiterrorism and Effective Death Penalty Act (AEDPA) established a one-year limitation period for filing an application under 28 U.S.C. § 2254. Under 28 U.S.C. § 2244(d)(1), the one-year limitation period begins to 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 retroactively applicable to cases on collateral review; or
(D) The date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence.

         28 U.S.C. § 2244(d)(1).

         The statute provides for tolling for the time “during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment ...


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