Florentin (ID 98591) v. Cline
NOTICE AND ORDER TO SHOW CAUSE ENTERED: Petitioner is granted to and including January 2, 2018, 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 12/01/17. Mailed to pro se party Nicholas Florentin by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 17-3206-SAC
NOTICE AND ORDER TO SHOW CAUSE
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. 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 and enters the following order. Under this rule, the
Court may sua sponte dismiss the petition if it “clear from the face
of the petition itself” that the action is not timely. Kilgore v. Atty.
General of Colorado, 519 F.3d 1084, 1089 (10th Cir. 2008).
Petitioner was convicted of one count of rape under K.S.A.
21-3502(a)(2) and was sentenced to a term of life with a mandatory
25-year minimum sentence under K.S.A. 21-4643(a). The Kansas Supreme
Court affirmed the conviction and sentence on June 14, 2013. State
v. Florentin, 303 P.3d 263 (Kan. 2013).
On May 23, 2014, petitioner filed a post-conviction motion under
K.S.A. 60-1507. The state district court denied relief on February
27, 2015. The Kansas Court of Appeals affirmed that decision on
November 23, 2016, and the Kansas Supreme Court denied review on June
Petitioner placed his federal petition in the prison mailing
system on November 14, 2017.
The limitation period
This matter is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Under the AEDPA, a one-year limitation
period applies to habeas corpus petitions brought under 28 U.S.C.
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
(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)(A)-(D).
The one-year limitation period generally runs from the date the
judgment becomes final, as provided by § 2244(d)(1)(A), unless the
petitioner asserts facts that implicate any of the remaining
provisions. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir.
Under the AEDPA, the limitation period is tolled for “[t]he 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”. 28 U.S.C. §2244(d)(2).
Finally, equitable tolling of the limitation period is available
in narrow circumstances. See Holland v. Florida, 560 U.S. 631, 645,
649 (2010)(stating that § 2244(d) “is subject to equitable tolling”).
A petitioner seeking equitable tolling must establish “(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
Here, petitioner’s conviction became final on September 13,
2013, ninety days after the June 14, 2013, decision of the Kansas
Supreme Court, when the time for seeking review in the United States
Supreme Court expired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th
Cir. 2001) and Sup. Ct. R. 13.1 (requiring petition for certiorari
to be filed within 90 days after entry of judgment).
The one-year limitation period began to run on September 14,
2013, and continued to run until May 23, 2014, when petitioner filed
a motion under K.S.A. 60-1507, tolling the limitation period. At that
time, 251 days had run on the limitation period, with 114 days
The limitation period was tolled during the pendency of that
action and began to run again following the June 20, 2017, denial of
review by the Kansas Supreme Court. It expired 114 days later, on
October 12, 2017.
Order to Show Cause
The present petition, filed on November 14, 2017, was not filed
within the one-year limitation period and is subject to dismissal
unless petitioner can show that he is entitled to equitable tolling.
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 January 2, 2018, to show cause why this matter should
not be dismissed due to his failure to timely file the petition.
IT IS SO ORDERED.
This 1st day of December, 2017, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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