United States District Court, D. Kansas
BENNIE R. MURDOCK, Petitioner,
KRISTI MILLER, Respondent.
NOTICE AND 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 his fee status
is pending. For the reasons that follow, the Court directs
petitioner to show cause why this matter should not be
dismissed due to his failure to commence this action within
the one-year limitation period that governs this action or to
present new evidence that supports his claim of factual
was convicted in 1983 of first-degree murder, rape, and
aggravated burglary. The conviction was affirmed in 1984.
State v. Murdock, 689 P.2d 814 (Kan. 1984). In 2004,
petitioner sought DNA testing of physical evidence. The
request was denied because no material was available for
testing. Petitioner did not appeal. In 2014, petitioner moved
to correct an illegal sentence. The motion was denied, and
the Kansas Court of Appeals affirmed in 2016. State v.
Murdock, 366 P.3d 666 (Table), 2016 WL 687757 (Kan. App.
Feb. 19, 2016). In 2017, petitioner filed a state
post-conviction action under K.S.A. 60-1507. The district
court summarily denied relief, and the Kansas Court of
Appeals affirmed, finding that petitioner had not presented a
colorable claim of actual innocence to excuse the late filing
of that action. Murdock v. State, 437 P.3d 1033
(Table), 2019 WL 1497013 (Kan. Apr. 5, 2019).
challenges his 1983 conviction on claims of a due process
violation, a challenge that asserts insufficiency of the
evidence; ineffective assistance of trial counsel; and the
loss or destruction of potentially exculpatory evidence in
the form of latent fingerprints from the victim's
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:
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
exercise of due diligence.
28 U.S.C. § 2244(d)(1).
AEDPA became effective on April 24, 1996. Because
petitioner's conviction became final before its
enactment, the one-year limitation period began to run in
this case on April 24, 1996, and expired one year later.
Hoggro v. Boone, 150 F.3d 1223, 1225-26
(10th Cir. 1998)(recognizing judicially created
grace period). Because petitioner took no ...