United States District Court, D. Kansas
RONALD D. BEVAN, 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 his fee status
is pending. The Court has conducted an initial review of the
petition under Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts. For the reasons
that follow, the Court directs petitioner to show cause why
this matter should not be dismissed as time-barred.
was convicted in the District Court of Sedgwick County Kansas
of involuntary manslaughter, involuntary manslaughter while
driving under the influence of alcohol, and aggravated
battery. The Kansas Court of Appeals (KCOA) affirmed the
convictions. State v. Bevan, 303 P.3d 727 (Table),
2013 WL 3791700 (KS Ct. App. Jul 19, 2013), rev.
denied, Apr. 28, 2014. On July 17, 2015, petitioner filed
a motion for post-conviction relief under K.S.A. 60-1507. The
district court conducted an evidentiary hearing and denied
relief. The KCOA affirmed. Bevan v. Cline, 422 P.3d
690 (Table), 2018 WL 3486565 (Kan.Ct.App. Jul 20, 2018),
rev. denied, Jan. 18, 2019.
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
exercise of due diligence.
28 U.S.C. § 2244(d)(1).
one-year limitation period generally runs from the date the
judgment becomes “final, ” as provided by
§2244(d)(1)(A). See Preston v. Gibson, 234 F.3d
1118, 1120 (10th Cir. 2000). Under Supreme Court law,
“direct review” concludes when the availability
of direct appeal to the state courts and request for review
to the Supreme Court have been exhausted. Jimenez v.
Quarterman, 555 U.S. 113, 119 (2009). The Rules of the
U.S. Supreme Court allow ninety days from the date of the
conclusion of direct appeal to seek certiorari. 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).
The limitation period begins to run the day after a
conviction becomes final. See Harris v. Dinwiddie,
642 F.3d 902, 906-07 n.6 (10th Cir. 2011).
statute also contains a tolling provision:
The time during which a properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any ...