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Bailey v. Hrabe

United States District Court, D. Kansas

March 29, 2018

ANDRE D. BAILEY, Petitioner,
v.
JOEL HRABE, Respondent.

          MEMORANDUM AND ORDER

          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 the Court grants leave to proceed in forma pauperis. The Court has conducted an initial review of the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and enters the following order.

         Background

         Petitioner was convicted in the District Court of Sedgwick County of one count of felony-murder, two counts of aggravated robbery, one count of criminal discharge of a firearm at an occupied building, one count of possession of marijuana with intent to sell, and one count of no tax stamp. State v. Bailey, 255 P.3d 19 (Kan. 2011).

         On October 11, 2012, petitioner filed a state-postconviction motion under K.S.A. 60-1507. The state district court denied relief, but the Kansas Court of Appeals reversed the convictions of possession of marijuana with intent to sell and no tax stamp. Bailey v. State, 392 P.3d 566 (Table), 2017 WL 1197240 (Kan.App. Mar. 31, 2017), rev. denied Oct. 27, 2017.

         Petitioner filed his federal application for habeas corpus on March 23, 2018.

         Discussion

         This petition is subject to the one-year limitation period established by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) in 28 U.S.C. § 2244(d). Section 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 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 presented could have been discovered through the ...

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