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Rowell v. Schnurr

United States District Court, D. Kansas

January 14, 2020

JAMES ROWELL, Petitioner,
v.
DAN SCHNURR, Respondent.

          MEMORANDUM AND ORDER

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE.

         This matter is before the Court on a petition for habeas corpus filed under 28 U.S.C. § 2254. Petitioner proceeds pro se. Petitioner filed this action on July 9, 2019, and submitted a memorandum in support (Doc. 2) and a motion to excuse the one-year statute of limitations (Doc. 3). The Court directed a response on the motion, and respondent filed the response on November 25, 2019 (Doc. 14). The Court has considered the record and, for the reasons that follow, concludes this matter must be dismissed as time-barred.

         Background

         In 2003, petitioner entered a plea of no contest to one count of attempted first-degree murder, one count of aggravated robbery, and one count of aggravated kidnapping. At the time of the crimes, petitioner was 17 years old, but he was certified for adult prosecution under K.S.A. 38-1636. He was sentenced to a term of 310 months' imprisonment.

         Petitioner appealed, but the Kansas Court of Appeals dismissed the appeal for lack of jurisdiction because petitioner had received a presumptive sentence. State v. Rowell, 109 P.3d 204 (Table), 2005 WL 824101 (Kan. App. Apr. 8, 2005).

         In January 2011, petitioner filed a pro se motion to correct an illegal sentence. In that motion, he argued the state district court lacked jurisdiction to sentence him due to errors in his certification as an adult. The district court summarily denied the motion, and the Kansas Court of Appeals affirmed, finding that there was substantial competent evidence supporting the certification decision and that the district court had properly considered the statutory factors set out in K.S.A. 38-1636(e). State v. Rowell, 286 P.3d 239 (Table), 2012 WL 4794652 (Kan. App. Oct. 5, 2012), rev. denied, Jul. 19, 2013.

         In July 2014, petitioner filed a motion under K.S.A. 60-1507, primarily alleging ineffective assistance by his trial counsel. The district court appointed counsel, conducted a status hearing, and summarily denied the motion, finding it was not timely. The Kansas Court of Appeals affirmed that decision. Rowell v. State, 401 P.3d 1063 (Table), 2017 WL 4216152 (Kan. App. Sep. 22, 2017), rev. denied, Aug. 30, 2018.

         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 ...

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