United States District Court, D. Kansas
JAMES C. STRADER, Petitioner,
STATE OF KANSAS, 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 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 Section 2254 Cases
in the United States District Courts.
was convicted of aggravated kidnapping, rape, and aggravated
burglary in the District Court of Reno County, Kansas. His
conviction was affirmed on appeal. State v. Strader,
168 P.3d 614 (Table), 2007 WL 2992492 (Kan.Ct.App. Oct. 12,
2007), rev. denied, Apr. 23, 2008. The Court has
found no record of any additional review in the state courts.
commenced this action on July 25, 2019.
Court has reviewed the record and has identified several
deficiencies in the petition.
this matter is governed by the one-year limitation period
established in the Antiterrorism and Effective Death Penalty
Act (AEDPA). 28 U.S.C. § 2244(d). After the Kansas
Supreme Court denied review in petitioner's direct appeal
on April 23, 2008, petitioner had ninety days to seek review
in the United States Supreme Court. U.S. S.Ct. Rule 13.1.
“If a prisoner does not file a petition for writ of
certiorari with the United States Supreme Court after his
direct appeal, the one-year limitation period begins to run
when the time for filing a certiorari petition
expires.” United States v. Hurst, 322 F.3d
1256, 1259 (10th Cir. 2003) (internal quotations omitted).
Accordingly, unless tolled, the limitation period began to
run in July 2008 and expired one year later.
petitioner broadly contends that this matter should not be
time-barred due to his head injury, he offers no
particularized explanation of how that injury prevented him
from timely pursuing review. The petition states that the
injury occurred in October 2002, which preceded petitioner's
conviction. Yet petitioner was competent to stand trial and
has been incarcerated in facilities operated by the Kansas
Department of Corrections since his conviction.
although the material filed with the petition exceeds 300
pages, petitioner has not clearly identified the claims upon
which he seeks relief. Much of the material appears to be
irrelevant, and the form pleading submitted by petitioner is
largely left blank.
a court examining a petition filed under § 2254 must
consider whether the petitioner “has exhausted the
remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A). Generally, to exhaust state
court remedies, the petitioner first must present the claims
to the state courts before presenting them in a federal
habeas petition. Simpson v. Carpenter, 912 F.3d 542,
565 (10th Cir. 2018). It appears that petitioner
has exhausted only one claim, namely, his claim that the
trial court erred in admitting prior crimes evidence under
K.S.A. 60-455. And because that claim involves a matter of
state law, it does not state a federal claim for relief.
“A federal court may not issue the writ on the basis of
a perceived error of state law.” Pulley v.
Harris, 465 U.S. 37, 41 (1984); see also Leatherwood
v. Allbaugh, 861 F.3d 1034, 1043 (10th Cir.
2017)(“Federal habeas relief is not available to
correct state law errors.”).
to Show Cause
Court will direct petitioner to show cause on or before
September 9, 2019, why this matter should
not be dismissed on the grounds that it was not filed within
the limitation period and that petitioner has not identified
a claim that is properly exhausted and states a federal claim
for relief. Petitioner may file an amended petition ...