United States District Court, D. Kansas
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 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.
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. 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.
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.
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).
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
Doc. 1, p. 6.
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).
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