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Barker v. Schnurr

United States District Court, D. Kansas

October 24, 2019

BILLY JOE BARKER, JR., 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. Petitioner proceeds pro se, and his fee status is pending. The Court has conducted an initial review of the petition under Rule 4 of the Rules Governing Section 2254 Petitions in the United States District Courts. Rule 4 provides that a habeas court must promptly examine a petition, and, “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief, ” must dismiss the petition and notify the petitioner.

         Background

         Petitioner was convicted in the District Court of Greenwood County, Kansas, of attempted first-degree murder of Officer Timothy Soule, attempted first-degree murder of Officer Ryan Winfrey, attempted first-degree murder of Officer Calvin Schaeffer, aggravated assault of Officer Jim Oliver, aggravated battery, domestic battery, and obstructing legal process or officer duty.[1] He was sentenced to a term of 356 months for the primary crime against Officer Soule and a term of 206 months for the crime against Officer Winfrey. These sentences were to run consecutively, yielding a controlling sentence of 562 months. Sentences for the remaining crimes were ordered to run concurrently with the controlling sentence.

         On appeal, the Kansas Court of Appeals (KCOA) overturned the conviction involving Office Soule and remanded for a new trial on that count. It also reversed the conviction of aggravated assault but did not remand that matter. On remand, the State declined to retry petitioner on the crime against Office Soule. The district court resentenced petitioner in April 2001 to 356 months for the attempted murder of Officer Winfrey and 206 months for the attempted murder of Officer Schaeffer. Petitioner's controlling sentence therefore remained 562 months.

         In 2016, petitioner challenged the legality of his sentence based upon new case law governing his criminal history score. The district court adjusted his criminal history score but rejected his claim that it lacked jurisdiction at the 2001 resentencing. The district court modified his controlling term to 514 months. The KCOA affirmed the decision, finding that the district court properly applied state law. State v. Barker, 428 P.3d 824, 2018 WL 5093294 (Kan.Ct.App. Oct. 19, 2018).

         The petition

         The sole ground for relief in the petition states:

28 U.S.C. 2254 - Rule 1 (a)(1)(2)(b), Guarantee fundamental 6th Amendment right to a fair and speedy trial, due process of law:
Supporting facts: The facts outlined in the Kansas Supreme Court's decision (accompanying as appendix 1) substantially states the nature and procedural posture of this case. No. further statement of facts is necessary except for … the timeliness of this petition's one-year statute of limitation as contained in 28 U.S.C. 2244(d) October 19, 2018, [does not bar pro se petitioner's petition].

Doc. 1, p. 6.

         Discussion

         This matter is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). Under the AEDPA, a federal court may grant habeas relief to a prisoner in state custody “only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

         A petitioner may not obtain relief in habeas corpus on the basis of a state-law error. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010)(“[I]t is only noncompliance with federal law that renders a State's criminal judgment ...


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