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Bevan v. State

United States District Court, D. Kansas

December 12, 2019

RONALD D. BEVAN, Petitioner,
v.
STATE OF KANSAS, 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 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.

         Background

         Petitioner 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[1], 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.

         Discussion

         This 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).

         The 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).

         The 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 ...

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