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Wahl v. Schnurr

United States District Court, D. Kansas

May 24, 2019

DUANE E. WAHL, Petitioner,
v.
DAN SCHNURR, 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. The Court has conducted an initial review of the petition under Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 and enters the following order.

         Background

         Petitioner was convicted, on his guilty plea, of one count of first-degree murder. As part of the plea, he admitted the factual basis of the charge, agreed to a hard 25 year life sentence, waived his right to a direct appeal, and agreed to waive collateral attack remedies except in limited circumstances. Petitioner entered the plea on December 9, 2010, and did not appeal. Wahl v. State, 344 P.3d 385 (Kan. 2015).

         On or about December 20, 2011, petitioner mailed a motion under K.S.A. 60-1507 to the state district court. That action initially was dismissed, but on remand, the state district court conducted a hearing[1] and ruled that petitioner had not shown ineffective assistance of counsel. The Kansas Court of Appeals affirmed the denial of the motion[2]. Wahl v. State, 400 P.3d 679 (Table), 2017 WL 3668917 (Kan. App. Aug. 25, 2017), rev. denied, Feb. 26, 2018.

         Petitioner submitted his federal petition on May 2, 2019.

         Analysis

         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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