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Murdock v. Miller

United States District Court, D. Kansas

April 26, 2019

BENNIE R. MURDOCK, Petitioner,
v.
KRISTI MILLER, Respondent.

          NOTICE AND 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 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 innocence.

         Background

         Petitioner 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).

         Discussion

         Petitioner 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 residence[1].

         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 exercise of due diligence.

28 U.S.C. § 2244(d)(1).

         The 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 ...


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