United States District Court, D. Kansas
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, and the Court grants
leave to proceed in forma pauperis.
Court has conducted an initial review of the petition as
directed by Rule 4 of the Rules Governing Habeas Corpus Cases
under Section 2254 and directs petitioner to show cause why
this matter should not be dismissed as time-barred.
1997, petitioner was convicted in the District Court of Reno
County, Kansas, on his no contest plea to the premeditated
first-degree murder of his wife in June 1978. State v.
Parks, 962 P.2d 486 (1998).
time of the murder, the sentence for premeditated
first-degree murder in Kansas was life imprisonment. At the
1997 hearing on his plea, neither the prosecution nor the
district court advised petitioner of the maximum possible
sentencing hearing, the district court imposed a sentence
consecutive to the petitioner's sentence from a New
Mexico conviction, rejecting the portion of the plea
agreement that recommended concurrent sentences.
30, 2003, petitioner filed a state post-conviction action in
the district court. That matter, Reno County No.
2003-cv-000355, was dismissed on July 30, 2003, and
petitioner did not appeal.
January 2015, more than 16 years after his conviction,
petitioner filed a motion captioned as a motion to set aside
a void judgment. The district court appointed counsel and
conducted a nonevidentiary hearing on the motion. Counsel for
petitioner advised the court that the motion should be
treated as one to withdraw the no contest plea due to the
failure to advise petitioner of the possible maximum penalty.
The district court agreed to construe the motion as one to
withdraw plea but denied relief because petitioner did not
assert grounds to establish excusable neglect for the delayed
filing.The Kansas Supreme Court affirmed.
State v. Parks, 417 P.3d 1070 (Kan. 2018).
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