United States District Court, D. Kansas
JAMES C. STRADER, Petitioner,
STATE OF KANSAS, Respondent.
MEMORANDUM AND ORDER
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 in forma
was convicted of aggravated kidnapping, rape, and aggravated
burglary in the District Court of Reno County, Kansas.
State v. Strader, 168 P.3d 614 (Table), 2007 WL
2992492 (Kan.Ct.App. Oct. 12, 2007), rev. denied,
Apr. 23, 2008.
August 9, 2019, the Court issued a Notice and Order to Show
Cause (NOSC) which advised petitioner of the following
deficiencies in the petition: first, the action appears to be
barred by the one-year limitation period under 28 U.S.C.
§2244(d); second, petitioner fails to clearly identify
the claims upon which he seeks relief; and third, it appears
that only a single claim had been properly exhausted in the
state courts. That claim, however, appears to present only a
claim concerning the proper application of a state statute
and therefore does not present a constitutional claim
cognizable in federal habeas corpus.
the issuance of the NOSC, petitioner has submitted 27
pleadings in this matter. He appears to concede that this
matter was not filed within the limitation period. Giving the
pleadings the liberal construction, the Court finds that
petitioner asserts an equitable defense, namely, that
detectives manufactured evidence against him.
[A]ctual innocence, if proved, serves as a gateway through
which a petitioner may pass” to overcome a failure to
timely file a federal habeas corpus petition. McQuiggin
v. Perkins, 569 U.S. 383, 386 (2013). An actual claim of
innocence requires a petitioner to “support his
allegations of constitutional error with new reliable
evidence - whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence - that was not presented at trial.” Schlup
v. Delo, 513 U.S. 298, 324 (1995). This category of
equitable relief is “a rare remedy to be applied in
unusual circumstances.” Al-Yousif v. Trani,
779 f.3d 1173, 1179 (10th Cir. 2015)(quoting
Yang v. Archuleta, 525 F.3d 925, 928
(10th Cir. 2008)).
petitioner provides no more than bare assertions that are
unsupported, the Court concludes he has not identified any
objective ground that satisfies the standard identified in
Schlup. Accordingly, he has not overcome the failure
to timely file, and this matter is subject to dismissal.
has filed a number of motions in this matter. The Court has
examined each one but finds no grounds that merit extensive
discussion. In general, these motions appear unrelated to the
present petition or to the defects identified by the Court.
Accordingly, the Court will deny the motions.
Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, “the district court must
issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” A certificate of
appealability should issue “only if the applicant has
made a substantial showing of the denial of a constitutional
right, ” and the Court identifies the specific issue
that meets that showing. 28 U.S.C. § 2253.
as here, the Court's decision is based on a procedural
ground, the petitioner must show that “jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the