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Parks v. Cline

United States District Court, D. Kansas

April 17, 2019

PHILLIP PARKS, Petitioner,
v.
WARDEN SAM CLINE[1], 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 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.

         Background

         In 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).

         At the 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 sentence.

         At the 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.

         On June 30, 2003, petitioner filed a state post-conviction action in the district court. That matter, Reno County No. 2003-cv-000355[2], was dismissed on July 30, 2003, and petitioner did not appeal.

         In 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.[3]The Kansas Supreme Court affirmed. State v. Parks, 417 P.3d 1070 (Kan. 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 ...

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