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Fraley v. State

United States District Court, D. Kansas

April 16, 2019

MARK FRALEY, Petitioner,
v.
STATE OF KANSAS, Respondent.

          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 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 § 2254 Cases and, for the reasons that follow, directs petitioner to show cause why this matter should not be dismissed as time-barred.

         Background

         Petitioner was convicted in the District Court of Sedgwick County of aggravated burglary and rape and sentenced to 272 months in prison. The conviction was affirmed on appeal. State v. Fraley, 2004 WL 1443894 (Kan. App. Jun. 25, 2004)(unpublished order), rev. denied, 278 Kan. 849 (Sep. 14, 2004).

         On September 13, 2005[1], petitioner filed a post-conviction challenge to his conviction under K.S.A. 60-1507 alleging ineffective assistance of counsel, prosecutorial misconduct, and other errors. The state district court summarily denied relief, but the Kansas Court of Appeals reversed that decision and remanded it. Fraley v. State, 189 P.3d 580 (Table), 2008 WL 3367566 (Kan. App. Aug. 8, 2008). The district court appointed counsel, heard argument, and again denied relief. The Kansas Court of Appeals affirmed. Fraley v. State, 258 P.3d 387 (Table), 2011 WL 2795474 (Kan. App. Aug. 26, 2011), rev. denied, Feb. 2, 2012.

         While that matter was pending, petitioner filed a pro se motion in his criminal case seeking funds for an investigator. The district court denied that request, and the Kansas Court of Appeals affirmed. State v. Fraley, 2012 WL 2326006 (Kan. App. Jun. 15, 2012)(unpublished opinion), rev. denied, 296 Kan. 1132 (Mar. 26, 2013).

         In May 2014, petitioner filed a motion to correct an illegal sentence under K.S.A. 22-3504, and in July 2014, he filed a motion to arrest the judgement of conviction. The district court denied relief in separate rulings; the Kansas Court of Appeals consolidated petitioner's appeals and affirmed. State v. Fraley, 372 P.3d 446 (Table), 2016 WL 3219099 (Kan. App. Jun. 10, 2016), rev. denied, Oct. 26, 2017.

         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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