Laughlin (ID 59704) v. Attorney General of Kansas

Filing 8

ORDER ENTERED: This matter is dismissed as time-barred. No Certificate of Appealability will issue. Signed by U.S. Senior District Judge Sam A. Crow on 09/10/20. Mailed to pro se party Derrick Laughlin by regular mail. (smnd)

Case 5:20-cv-03157-SAC Document 8 Filed 09/10/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DERRICK LAUGHLIN,
Petitioner,
v.

CASE NO. 20-3157-SAC

ATTORNEY GENERAL OF KANSAS,
Respondent.
ORDER
This matter is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
The Court conducted an initial review of the Petition under Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts, and entered an Order to Show Cause
(Doc. 4) (“OSC”) granting Petitioner until August 7, 2020, in which to show cause why this
matter should not be dismissed as untimely. The Court granted Petitioner an extension of time
until September 8, 2020, in which to respond. (Doc. 7.) Petitioner has failed to respond by the
Court’s deadline.
This action is subject to the one-year limitation period established by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) in 28 U.S.C. § 2244(d). The Court noted
in the OSC that Petitioner’s conviction and sentence were affirmed by the Kansas Supreme Court
on April 19, 1996. Petitioner had ninety days from the date of the conclusion of direct appeal to
seek certiorari. Where a prisoner declines to seek review in the Supreme Court, the limitation
period begins to run the day after the ninety-day period for seeking review in the Supreme Court
expires. See Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Because Petitioner
did not seek review in the Supreme Court, his time began to run on or about July 19, 1996.
Petitioner’s one-year time limit ran long before he filed his state habeas action in 2004.

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Case 5:20-cv-03157-SAC Document 8 Filed 09/10/20 Page 2 of 2

The Court found that the instant Petition is not timely and is subject to dismissal unless
Petitioner can demonstrate grounds for equitable or statutory tolling. Petitioner has failed to
respond to the OSC by the Court’s deadline and has failed to show good cause why this matter
should not be dismissed. Therefore, this matter is dismissed as barred by the one-year limitation
period.
Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or
deny a certificate of appealability (“COA”) upon entering a final adverse order. A COA may
issue only if the petitioner made a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2). “When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). The failure to satisfy either prong requires the denial of a COA. Id. at 485. The
Court finds nothing in the present record that suggests its ruling is debatable or an incorrect
application of the law and therefore declines to issue a certificate of appealability.
IT IS THEREFORE ORDERED THAT this matter is dismissed as time-barred.
IT IS FURTHER ORDERED THAT no Certificate of Appealability will issue.
IT IS SO ORDERED.
Dated September 10, 2020, in Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge

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