McNelly (ID 69108) v. Cline et al

Filing 2

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Petitioner is granted to and including September 25, 2017, to show cause why this matter should not be dismissed due to his failure to timely file the petition. Signed by U.S. Senior District Judge Sam A. Crow on 08/22/17. Mailed to pro se party Kenneth David McNelly by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KENNETH DAVID McNELLY,
Petitioner,
v.

CASE NO. 17-3141-SAC

SAM CLINE,
Respondent.

NOTICE AND ORDER TO SHOW CAUSE
This matter is a petition for habeas corpus filed under 28 U.S.C.
§2254. Petitioner proceeds pro se and paid the filing fee. The Court
has conducted a preliminary review of the petition under Rule 4 of
the Rules Governing Section 2254 Cases in the United States District
Courts. Having considered the record, the Court directs petitioner
to show cause why this matter should not be dismissed due to his failure
to commence this action within the statutory limitation period.
Background
Petitioner was convicted in the District Court of Saline County
on August 5, 1999, on eight counts of rape and one count each of
aggravated criminal sodomy and aggravated indecent liberties with a
child. State v. McNelly, 227 P.3d 1010, *1 (Table)(Kan.Ct.App. Mar.
26, 2010), rev. denied Aug. 8, 2010 (summarizing procedural and
factual history).
The conviction was affirmed by the Kansas Court of Appeals on
January 11, 2002, and the Kansas Supreme Court denied review on April
30, 2002.
On May 27, 2003, petitioner filed a post-conviction motion under

K.S.A. 60-1507. That matter was summarily dismissed, and it does not
appear that petitioner filed an appeal. He filed a second application
under section 60-1507 in 2004. Relief again was denied, and petitioner
filed an appeal in the Kansas Court of Appeals. That appeal was
voluntarily dismissed on April 19, 2005. McNelly v. State, 302 O.3d
44, *1 (Table)(Kan. Ct. App. June 7, 2013), rev. denied, Nov. 22, 2013
(summarizing case history).
In early 2006, petitioner filed a motion to correct an illegal
sentence, and in July 2007, the Kansas Court of Appeals vacated
petitioner’s sentence and remanded the matter for resentencing.
Petitioner was resentenced on April 7, 2008. Id.
In 2010, petitioner filed a third motion under K.S.A. 60-1507,
which was summarily dismissed. The Kansas Court of Appeals affirmed
the dismissal on June 7, 2013, and the Kansas Supreme Court denied
review on November 22, 2013.
In 2015, petitioner filed another motion to correct sentence.
The Kansas Court of Appeals summarily affirmed the denial of relief,
and the Kansas Supreme Court denied review on June 20, 2017.
Discussion
Petitions for a writ of habeas corpus filed under § 2254 are
governed by a one-year limitation period. 28 U.S.C. § 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.
This limitation period is subject to statutory tolling:
The time during which a properly filed application for State
post-conviction or other collateral relief with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
Subsection.
28 U.S.C. § 2244(d)(2).
In this case, petitioner’s conviction became final ninety days
after the decision of the Kansas Supreme Court, upon the expiration
of the time for seeking review in the United States Supreme Court.
Locke v. Saffle, 237 F.3d 1269 (10th Cir. 2001). The one-year
limitation period began to run on July 30, 2002, and ran until
petitioner filed his first action under K.S.A. 60-1507 on May 27, 2003,
which tolled the limitation period at 300 days, with 65 days remaining.
It is not clear from the materials available to the Court when
petitioner’s first action under K.S.A. 60-1507 was dismissed.
However, it appears that at the latest, the limitation period began
to run again upon the voluntary dismissal of petitioner’s appeal from
the dismissal of his second action under K.S.A. 60-1507 on April 19,
2005. The limitation period began to run again on April 20, 2005, and
expired 65 days later, on June 24, 2005. Therefore, the limitation

period expired before petitioner commenced this habeas corpus action.
The habeas corpus limitation period also may be equitably tolled.
Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). “[E]quitable
tolling requires a litigant to establish two elements: (1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Yang v. Archuleta, 525
F.3d 925, 928 (10th Cir. 2008)(citations and quotation marks omitted).
A petitioner seeking equitable tolling has “a strong burden to show
specific fact” to meet the two-part test. Id.
Order to Show Cause
For the reasons set forth, the Court finds petitioner did not
file this petition within the one-year limitation period. Petitioner
is directed to show cause why this matter should not be dismissed and
to identify any ground for equitable tolling.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner is granted to
and including September 25, 2017, to show cause why this matter should
not be dismissed due to his failure to timely file the petition.
IT IS SO ORDERED.
DATED:

This 22d day of August, 2017, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge